Whitehorn v. McCann et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01105-SKC-STV
BYRON L. WHITEHORN,
Plaintiff,
v.
BETH MCCANN, et al,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This civil action comes before the Court on Plaintiff’s Motion for Appointment of
Counsel (the “Motion”). [#64] 	The Motion has been referred to this Court. 	[#65]
Plaintiff, proceeding pro se, filed the instant action on April 22, 2024. 	[#1] 	Plaintiff filed
an Amended Complaint on January 6, 2025. 	[## 54, 58] 	The Complaint involves
allegations of malicious prosecution relating to Plaintiff’s arrest for sexual assault. [#58]
Following its review of the Motion, the case file, and the applicable law, this Court
DENIES the Motion, without prejudice, for the reasons stated below.
The determination of whether to appoint counsel in a civil case is left to the
sound discretion of the district court. 	Rucks v. Boergermann, 57 F.3d 978, 979 (10th
Cir. 1995). 	In deciding whether to request counsel for a civil litigant, the district court
should evaluate “the merits of a [litigant’s] claims, the nature and complexity of the
factual and legal issues, and the [litigant’s] ability to investigate the facts and present his
claims.” 	Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
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(citations omitted). 	Under Local Rule of Practice 15(f)(1)(B), the Court applies the
following factors and considerations in reviewing a motion for appointment of counsel in
a civil action: 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 unrepresented party to retain an
attorney 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. 	D.C.COLO.LAttyR 15(f)(1)(B). 	“The burden is on
the applicant to convince the court that there is sufficient merit to his claim to warrant
the appointment of counsel.” Hill, 393 F.3d at 1115 (quoting McCarthy v. Weinberg, 753
F.2d 836, 838 (10th Cir. 1985)). 	“Only in those extreme cases where the lack of
counsel 	results 	in 	fundamental 	unfairness 	will 	the 	district 	court’s 	decision 	be
overturned.” Id. (quoting McCarthy, 753 F.2d at 839).
This Court has considered Plaintiff’s request for appointed counsel in light of the
factors identified in Hill and D.C.COLO.LAttyR 15(f)(1)(B). 	Upon review of the Motion
and the Complaint, it does not appear that Plaintiff’s claims present particularly complex
issues. 	[See generally #58] 	Importantly, this case remains at the very early stages of
litigation. 	There is no answer or response to Plaintiff’s Amended Complaint, and no
Scheduling Order has been entered. 	Given the early stages of litigation, the Court
cannot evaluate the merits of Plaintiff’s claim. 	Additionally, while Plaintiff claims he has
reached out to several attorneys who have declined to represent Plaintiff based on cost,
[#64 at ¶4], he has not demonstrated whether he has exhausted other avenues for
retaining counsel, such as by contacting a legal aid or educational clinic.
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Given these factors, and in particular given the early stage of this case, the Court
cannot conclude that the interest of justice would be served by appointment of civil
counsel at this time. 	If, as the case develops, the merits or complexity of the case
become clearer, Plaintiff may renew his request.
Accordingly, IT IS ORDERED that Plaintiff’s Motion [#64] is DENIED WITHOUT
PREJUDICE. The Clerk of Court is directed to mail Plaintiff a copy of this Order.
DATED: February 5, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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