Defa v. Cox et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DEFA,
Plaintiff,
v.
COX et al,
Defendants.
MEMORANDUM DECISION AND
ORDER DENYING [12] PLAINTIFF’S
MOTION TO APPOINT COUNSEL
Case No. 2:25-cv-00528-TS-CMR
Judge Ted Stewart
Magistrate Judge Cecilia M. Romero
Before the court is a Motion to Appoint Counsel (Motion) (ECF 12) filed by pro se Plaintiff
Tyler Brandon Defa (Mr. Defa or Plaintiff). Proceeding in forma pauperis, Plaintiff filed this
action against Defendant on July 1, 2025 (ECF 1). While defendants in criminal actions have a
constitutional right to representation by an attorney, U.S. Const. amend. VI, Fed. R. Crim. P. 44,
there is “no constitutional right to appointed counsel in a civil case.” Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989). Indigent parties in civil actions who cannot obtain counsel may apply
for the appointment of counsel under 28 U.S.C. § 1915(e)(1). A court has discretion under §
1915(e)(1) on whether to appoint counsel. Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994).
The applicant has the burden to convince the court that the claim has enough merit to justify the
court’s appointing counsel. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
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The Tenth Circuit in Rucks v. Boergermann, noted that courts are to consider the following
four factors when deciding whether to appoint counsel: “‘the merits of the litigant’s claims, the
nature of the factual issues raised in the claims, the litigant’s ability to present his claims, and the
complexity of the legal issues raised by the claims.’” Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995) (quoting Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)). The court must
make its determination based on an examination of the “record at the time the request is made.”
McCarthy, 753 F.2d at 838 (citing Jackson v. Turner, 442 F.2d 1303 (10th Cir. 1971)).
Turning first to the merits of Plaintiff’s claims, based on an examination of the record,
Plaintiff does appear to have articulated factual support for a colorable claim. The court also notes
that Defendants did not file a motion to dismiss, which weighs in favor of a colorable claim. Thus,
the first factor weighs in favor of appointment.
The nature of the factual issues, however, weighs against appointment. Plaintiff’s action
arises from the alleged denial of access to a public accommodation for his service dog, which
resulted in an unlawful arrest, incarceration, and additional violations against him (ECF 1). “[T]he
majority of these events involve a straightforward narrative of what occurred to [Plaintiff]
personally.” Zemaitiene v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-
Day Saints, No. 2:16-CV-1271-RJS-EJF, 2017 WL 11566916, at *1 (D. Utah Mar. 20, 2017)
(citing Rucks, 57 F.3d at 979) (“[T]he district court should consider the nature of the factual issues
. . . and the ability of the plaintiff to investigate the crucial facts.”)).
The third Rucks factor is Plaintiff’s ability to present his claims. Plaintiff’s Complaint is
both formalistically and substantively strong, demonstrating his ability to draft his own filings and
sufficiently articulate his positions. See Lepp v. South Salt Lake Police Department, et. al., No.
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2:25-Cv-00675, 2025 WL 3012916, at *1 (D. Utah Oct. 28, 2025) (“While the factual and legal
issues in this case appear somewhat complex, upon review, Plaintiffs show a keen ‘“ability to
investigate the facts necessary for [the] issues and to articulate them in a meaningful fashion.’”)
(quoting Sandoval-Ochoa v. United States, 2017 U.S. Dist. LEXIS 57112, at *1 (D. Utah April 13,
2018)). Therefore, the third Rucks factor weighs against the appointment of counsel.
Lastly, the court must consider the complexity of the legal issues raised in the claims. The
constitutional and statutory violations mentioned in Plaintiff’s Complaint are not particularly
complex. There is well-established case law in these areas, and the standards are clearly defined
and frequently litigated. More importantly, like the pro se plaintiff in Rucks, Plaintiff appears to
have “a firm grasp of the fundamental issues in his case and seems capable of presenting his case
intelligently and coherently.” Rucks, 57 F.3d at 979.
In conclusion, although Plaintiff has presented a colorable claim, the other three Rucks
factors weigh against appointing counsel. Therefore, the court DENIES Plaintiff’s Motion for
Appointment of Counsel (ECF 12) without prejudice. The court acknowledges that appointed
counsel may later become appropriate or necessary. As the case develops, if it appears that counsel
could provide further specific assistance, Plaintiff may renew his motion for counsel.
DATED this 3 November 2025.
Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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