Thomas v. Heinonen et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-00568-CYC
BRITTANY THOMAS,
Plaintiff,
v.
HEINONEN, Officer, and
VILLATORO, Officer,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
This matter is before the Court on the plaintiff’s Motion for Appointment of Counsel,
ECF No. 42, (the “Motion”). Oral argument will not materially assist in the resolution of this
matter and the Motion is appropriately considered even without a response from the defendants.
See D.C.COLO.LCivR 7.1(d). To be sure, pro bono counsel would aid the plaintiff, as it would
in many pro se cases. Unfortunately, at this point, the plaintiff’s request is premature and, as
such, for the reasons that follow, the Motion is DENIED without prejudice.
BACKGROUND
The plaintiff initiated this action by filing a pro se complaint on February 20, 2025. ECF
No. 1. She was granted leave to proceed in forma pauperis, ECF No. 8, and was twice ordered to
amend her complaint. ECF Nos. 4 and 9. She failed to comply with the Court’s April 3, 2025
Order, ECF No. 9, and certain of her claims were dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) and Federal Rules of Civil Procedure 8 and 41(b). ECF Nos. 13 and 16. As a
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result, the Amended Complaint, ECF No. 7, as modified by Judge Babcock’s June 20, 2025
Order, ECF No. 16, is the operative complaint.
The plaintiff alleges that the defendants violated her Eighth Amendment rights by using
excessive force against her on July 29, 2024 at the Denver Women’s Correctional Facility. ECF
No. 7 at 5–7.
ANALYSIS
Unlike criminal defendants, civil claimants do not have a Sixth Amendment right to
appointed counsel. Fischer v. Dunning, 574 F. App'x 828, 832 (10th Cir. 2014). Moreover, a
district court cannot appoint pro bono counsel; instead, it can only ask an attorney to take the
case. Moaz v. Denver Int’l Airport, 747 F. App’x 708, 711 (10th Cir. 2018) (unpublished) (citing
Rachel v. Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016)). In deciding whether to request counsel
for a civil litigant, a court evaluates “the merits of a [litigant’s] claims, the nature and complexity
of the factual 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); accord
D.C.COLO.LAttyR 15(f)(1)(B)(i)-(iv) (reiterating factors and adding (1) the demonstrated
inability of the unrepresented party to retain an attorney by other means and (2) the degree to
which the interests of justice, including the benefits to the court, will be served by appointment
of counsel). A further consideration is 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. Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995). “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.
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At this stage, the plaintiff’s asserted reasons for appointment fall short of carrying that
burden. This case, for example is still in its very early stages — some of the defendants were just
recently served, others remain unserved, and the Court has not yet held a Status Conference. See
Diaz v. USI Ins. Servs., No. 18-cv-03280-NYW, 2019 WL 13444833, at *2 (D. Colo. Mar. 8,
2019). To be sure, “having counsel appointed would . . . assist[] h[er] in presenting h[er]
strongest possible case,” but “the same could be said in any case.” Rucks v. Boergermann, 57
F.3d 978, 979 (10th Cir. 1995). Indeed, there is no right to counsel in civil cases. See Jones v.
Pizza Hut, Inc., No. 10-cv-00442-WYD-KMT, 2010 WL 1268048, at *1 (D. Colo. Mar. 30,
2010) (“Unlike a criminal defendant, a plaintiff in a civil case has no constitutional or statutory
right to appointed counsel.”); see also Vasquez v. U.S. Off. of Pers. Mgmt., 847 F. Supp. 848, 849
(D. Colo. 1994) (“There is no constitutional right to counsel simply because a litigant is
indigent.”). And while there is little reason to doubt the general difficulty of handling a federal
lawsuit, the actual subject matter of the plaintiff’s complaint is not amongst the most complex
that find their way into federal court.
In sum, this case is at an early stage, it is not overly complex from a reading of the
complaint, and it is yet unclear how meritorious the plaintiff’s claims are. Should the plaintiff’s
circumstances materially change, the plaintiff may renew her request for appointment of counsel
at a later date. See McCullon v. Parry, No. 18-cv-00469-NYW, 2019 WL 4645436, at *5 (D.
Colo. Sept. 24, 2019) (appointing pro bono counsel under the factors of D.C.COLO.LAttyR
15(f)(1)(B)(i)-(iv) “given that this matter is now moving to trial”).
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CONCLUSION
For the foregoing reasons, the plaintiff’s Motion for Appointment of Counsel, ECF No.
42, is DENIED without prejudice.
Entered and dated this 23rd day of January 2026, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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