United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion
to Disqualify Attorney General [#12] (the
“Motion to Disqualify”) and on Plaintiff's
Motion for Appointment of Counsel [#16] (the
“Motion for Appointment”). For the reasons set forth
below, the Motions [#12, #16] are DENIED.
Summary of the Case
who is proceeding pro se,  filed a Complaint [#1] on October 4,
2017, alleging that Defendants-all state employees working at
the Colorado Department of Corrections and represented by the
Attorney General (“AG”)-have imposed unreasonable
burdens on Plaintiff's religious practice of Asatru.
Compl. [#1] at 4. Plaintiff's Motion to
Disqualify [#12] is premised on Plaintiff's belief that
the AG may not represent Defendants because neither
Colorado's Constitution nor the General Assembly vest
that authority with the AG. Plaintiff's Motion for
Appointment [#16] is based on Plaintiff's assertion that
he lacks the resources to properly litigate his case.
Motion to Disqualify
seeks to disqualify the AG from representing Defendants on
the grounds that “no license exists authorizing the AG
to” represent employees of the “Executive
Branch.” Motion to Disqualify [#12] at
Plaintiff argues that although Article IV of the Colorado
Constitution requires that the AG “perform duties as
are prescribed by [the Colorado] Constitution or by law,
” the Colorado Constitution does not enumerate any
powers and therefore, the AG only has that authority vested
by the General Assembly. Motion to Disqualify [#12]
at 1-2. Plaintiff argues that because the General Assembly
“confers no exclusive right to [the AG to] defend civil
actions” and because “the General Assembly . . .
confers no right [to the AG] to act as defense counsel for
the executive [branch] . . ., ” the AG may not
represent Defendants. Motion to Disqualify [#12] at
1-2. Plaintiff does not argue that the Court should
disqualify the AG on legal ethics grounds. See generally
Motion to Disqualify [#12].
motion to disqualify counsel is addressed to the sound
discretion of the district court.” World Youth Day,
Inc. v. Famous Artists Merch. Exch., Inc., 866 F.Supp.
1297, 1301 (D. Colo. 1994). The Court should evaluate motions
to disqualify with suspicion, and it must be aware that such
motions may be used to “secure a tactical advantage in
the proceedings.” Pappas v. Frank Azar &
Assoc., P.C., No. 06-cv-01024-MSK-BNB, 2007 WL 4224196,
at *6 (D. Colo. Nov. 27, 2007) (citing Religious Tech.
Ctr. v. F.A. C.T. Net, Inc., 945 F.Supp. 1470, 1478 (D.
Colo. 1996)). Thus, the moving party bears the burden of
establishing grounds for the disqualification. World
Youth Day, 866 F.Supp. at 1299.
admits that the Colorado Constitution or other laws define
the AG's authority. Motion to Disqualify [#12]
at 1-2. His argument fails, however, because it overlooks
statutorily vested authority allowing the AG to represent
state employees. See, e.g., Colo. Rev. Stat.
§§ 24-31-101(1)(a), (4). “The attorney
general of the state shall be the legal counsel for each
department division . . . and agency of the state government
. . . .” Colo. Rev. Stat. § 24-31-101(1)(a).
“Upon the request of any employee in the state
personnel system, it is the duty of the [AG] to represent
such employee in any civil action . . . if the action or
proceeding arises out of the employee's official duties
as determined by the attorney general.” Colo. Rev.
Stat. §§ 24-31-101(4). Because Defendants are
employees of the state and because the lawsuit arose out of
Defendants' official duties as determined by the AG, the
AG is authorized to represent them. Therefore, the Motion to
Disqualify [#12] is denied.
Motion for Appointment of Counsel
requests that the Court appoint counsel to represent him.
See Motion to Appoint [#16]. The Court does not have
the power to appoint an attorney without his or her consent,
Mallard v. U.S. Dist. Court for the S. Dist. of
Iowa, 490 U.S. 296, 310 (1989), nor does the Court have
funds available to pay an attorney who agrees to represent an
indigent litigant in a civil case. Nevertheless, the Court
can seek volunteer counsel to represent a plaintiff if the
Court determines, in its discretion, that it is appropriate
to do so.
Court will only seek volunteer counsel for a pro se plaintiff
if consideration of the following factors so warrants: (1)
the nature and complexity of the action; (2) the potential
merit of the pro se party's claims; (3) the demonstrated
inability of the pro se party to retain counsel by other
means; and (4) the degree to which the interests of justice
will be served by appointment of counsel, including the
benefit the Court may derive from the assistance of the
appointed counsel. See also Rucks v. Boergermann, 57
F.3d 978, 979 (10th Cir. 1995) (citing Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991)) (identifying
the following factors for consideration by the Court in
determining whether volunteer counsel should be appointed:
(1) the merits of the plaintiff's claims; (2) the nature
of the factual issues raised in the claims; (3) the
plaintiff's ability to present his claims himself; and
(4) the complexity of the legal issues raised). As part of
the fourth factor, the Court also considers whether there
exist any special circumstances such as those in McCarthy
v. Weinberg, 753 F.2d 836, 837 (10th Cir. 1985), where
the pro se plaintiff was confined to a wheelchair, had poor
eyesight, suffered from a speech impediment and memory
lapses, and had general difficulty in communications. See
Rucks, 57 F.3d at 979.
has demonstrated his ability to frame facts and discuss legal
issues. See, e.g., Motion to Disqualify
[#12]. The legal issues presented are not overly complex,
novel, or particularly difficult to state or analyze. See
Compl. [#1]. The fact that Plaintiff's incarcerated
status has made it difficult for him to obtain representation
and represent himself does not, by itself, warrant the need
for volunteer counsel. Although mindful of the difficulties
faced by pro se parties, courts and legislating bodies have
made a distinction between civil and criminal cases regarding
the necessity of counsel. See, e.g.,
Mallard, 490 U.S. at 301 (1989) (“Congress did
not intend § 1915[(e)] to license compulsory
appointments of counsel . . . .”); Custard v.
Turner, No. 06-cv-01036-WYD-CBS, 2008 WL 4838564, at *1
(D. Colo. Nov. 6, 2008) (noting that the court is without
statutory authority to commit federal funds to “require
counsel to represent” an indigent civil litigant).
Although there are extraordinary circumstances where
fundamental due process concerns may demand that a plaintiff
be provided with counsel, the Court finds that this
Plaintiff's particular circumstances, at present, do not
merit the appointment of counsel.
chose to bring this civil action voluntarily knowing the
limitations he would face due to his lack of legal training
and incarcerated status. To the extent that Plaintiff feels
that he cannot bear the responsibility at this time, he may
voluntarily dismiss his case without prejudice pursuant to
Fed.R.Civ.P. 41(a). However, while the case is pending, it
remains Plaintiff's legal obligation to comply with the
Federal Rules of Civil ...