Hoid v. Boulder County Sheriff's Office

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-00616-PAB-TPO
EDWARD HOID,
Plaintiff,
v.
BOULDER COUNTY SHERIFF’S OFFICE,
Defendant.
REPORT AND RECOMMENDATION
AND ORDER
Timothy P. O’Hara, United States Magistrate Judge.
This matter comes before the Court upon Plaintiff’s Motion for Amended Complaint. ECF
84.1 Plaintiff’s Motion is two pages, but the proposed Third Amended Complaint (TAC) is 59
pages. See ECFs 84, 84-1. Defendant filed a Response [ECF 91] objecting to Plaintiff’s request to
amend. Plaintiff filed a Reply [ECF 99]. Having reviewed the relevant briefing, the case file, and
applicable legal authority, the Court determines that oral argument is not needed. For the reasons
explained, this Court recommends that Plaintiff’s Motion for Amended Complaint [ECF 84] be
granted in part and denied in part.
Also before this Court is Plaintiff’s Motion for Appointment of Counsel, Motion for
Preservation of Record, Motion for Case Reassignment. ECF 103.2 This Court grants that Motion
1 The Motion was referred to this Court by Chief U.S. District Judge Philip A. Brimmer. ECF 85.
2 This Motion also was referred to this Court by Chief Judge Brimmer. ECF 104.
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 1 of 15

2
[ECF 103] in part by way of its own Order to the extent it approves this case to be placed on the
pro bono counsel list.
RELEVANT BACKGROUND
In Plaintiff’s original Complaint,3 filed on March 8, 2023, he sued Defendant Boulder
County Sheriff’s Office (Defendant) under 42 U.S.C. § 1983 for “Discrimination, Americans with
Disabilities, Civil Rights, and Bodily Injury.” See ECF 1 at 3-4. In his Complaint, Plaintiff focused
on the medical care he received while in Defendant’s custody relating to being an “acute, on-set,
chronic, insulin dependent diabetic.” Id. at 5. Specifically, Plaintiff described an incident that
occurred in early March of 2023 involving Deputy Kennedy. Id. at 6-7. Although he normally
received his insulin twice a day (at 10:00 p.m. and 4:00 a.m.), that night, while he was locked
down, the insulin did not arrive at 10:00 p.m. Id. at 6-7. Plaintiff made repeated requests to Deputy
Kennedy to alert the medical staff of his need for insulin. Id. Deputy Kennedy allegedly ignored
Plaintiff and refused to relay his concerns regarding his medical care to medical staff. Id. Then,
shortly after midnight, another inmate who was not locked down alerted other staff about
Plaintiff’s medical need, at which time Plaintiff was released from his cell, went downstairs to see
a nurse who administered an insulin injection to him. Id. He then received a second dose of insulin
at 4:00 a.m. Id. at 8. Later that morning, his vision became blurry and he fainted, striking his head
on the concrete. Id.
In the First Amended Complaint (FAC), Plaintiff also raised six claims, three involving
“Discrimination ADA,” one involving “Assault, retaliation, discrimination,” one involving “cruel
and 	unusual 	punishment,” 	and 	one 	involving 	“conditions 	of 	confinement/inadequate
3 Plaintiff requested [ECF 2], and was granted [ECF 4], leave to proceed in forma pauperis (IFP)
under 28 U.S.C. § 1915.
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 2 of 15

3
accommodation.” ECF 8. Once again, Plaintiff named only the Defendant. Id. And once again,
Plaintiff described Deputy Kennedy’s early March 2023 failure to alert medical staff to his need
for insulin. Id. at 7, 11. Although not claiming any individuals as Defendants, the Plaintiff also
generally mentioned two other individuals in the FAC, Deputy Moore and Deputy Warwick. Id.
at 4, 8. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (deliberate indifference to serious medical
needs of a prisoner by a correctional officer described as “intentionally denying or delaying access
to medical care or intentionally interfering with the treatment once prescribed.”) (internal citations
omitted).
In the Second Amended Complaint (SAC), Plaintiff raised six similar claims: 1) “ADA
Discrimination and Deliberate Indifference,” 2) “Serious Bodily Injury,” 3) “Assault and
Discrimination,” 	4) 	“Severe 	Bodily 	Injury,” 	5) 	“Severe 	Bodily 	Injury,” 	and 	6) 	“Eighth
Amendment; Cruel and Unusual Punishment.” ECF 17. Plaintiff sued one entity, Defendant, and
again detailed Deputy Kennedy’s role in refusing him medical care, that Deputy Kennedy’s actions
were deliberate, and that he suffered injury as a result, including that due to the delay, he suffered
a forced overdose of insulin. Id. at 5-9. While Plaintiff mentions other individuals by name in the
SAC, see e.g., id. at 8 (Deputy Warwick), at 11-12 (Deputy Moore) at 11, 13-14 (other Deputies),
none are alleged to have committed any acts that this Court would construe as a plausible
constitutional violation.
After Plaintiff filed his SAC, on August 30, 2023, Defendant filed a Motion to Dismiss.
ECF 32. Plaintiff responded [ECF 35] and Defendant replied [ECF 37]. On January 19, 2024,
Magistrate Judge Starnella denied Defendant’s Motion to Dismiss as it relates to Plaintiff’s failure
to exhaust administrative remedies, ECF 47 at 10, but granted the Motion as to all claims,
recommending:
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 3 of 15

4
1) 	Dismissal as to Plaintiff’s individual claim against Defendant (with prejudice) (id. at
10),
2) 	Dismissal as to Plaintiff’s municipal liability/official capacity claim against Defendant
(without prejudice) (id. at 15),
3) 	Dismissal as to Plaintiff’s ADA claim (without prejudice) (id. at 17), and
4) 	Dismissal as to Plaintiff’s assault claim (without prejudice) (id. at 18).
On January 31, 2024, Plaintiff objected to Magistrate Judge Starnella’s Recommendation.4 ECF
48. On February 6, 2024, Chief Judge Brimmer overruled Plaintiff’s objections and accepted
Magistrate Judge Starnella’s Recommendation. ECF 49. Chief Judge Brimmer also ordered that
the portions of Plaintiff’s Motion to Object to the Recommendation and to Amend the Complaint
[ECF 48] about amendment be referred to Magistrate Judge Starnella. Id.
On February 9, 2024, Plaintiff filed a Motion to Amend Complaint. ECF 51. Plaintiff filed
supplemental Motions to Amend as well. See ECFs 54 and 56. Plaintiff’s proposed Third Amended
Complaint (TAC) still sued Boulder County Sheriff’s Office as the sole Defendant and sought to
proceed on a municipal liability theory. See ECF 56-1. Defendant opposed Plaintiff’s Motion to
Amend. ECF 58. On August 7, 2024, Magistrate Judge Starnella recommended that Plaintiff’s
Motion to Amend be denied because he failed to state a claim either for municipal liability or a
violation of the ADA. ECF 66. Plaintiff objected to the Recommendation. ECF 67. On August 28,
2024, Chief Judge Brimmer accepted 	Magistrate Judge Starnella’s 	Recommendation and
overruled Plaintiff’s objections. ECF 68. In doing so, Chief Judge Brimmer found that “Mr. Hoid
has failed to show that granting him leave to amend his complaint would not be futile because Mr.
4 As part of Plaintiff’s Objections, he sought leave of the court to amend his SAC, noting: “I am
now more knowledgeable and capable for this amending.” ECF 48 at 2. Plaintiff also repeated
his emphasis on “March 2023” and jail staff disrupting my medicine and altering records is what
caused me to fall and faint and strike my head on concrete (I supplied proof) and caused me to
sustain permanent injuries, unwanted.” Id. at 2-3.
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 4 of 15

5
Hoid’s proposed third amended complaint does not sufficiently allege that [Boulder County
Sheriff’s Office] is liable for his injuries.” Id. at 6.
On March 5, 2025, this Court held a Status Conference with the Parties.5 ECF 82. At that
time, the Court inquired about Plaintiff’s plan moving forward. Plaintiff informed the Court of his
intention to seek leave to amend the operative pleading and that he now understood that he could
not proceed against Defendant as a municipality.6 Plaintiff informed the Court of his intention to
proceed against the individual defendants. Id. Based on Plaintiff’s representations, the Court
allowed Plaintiff to file another motion for leave to amend. Counsel for Defendant did not have an
objection to Plaintiff being allowed to seek the Court’s leave to amend his SAC, but Defendant
maintained the right to object to the proposed complaint. During the Status Conference, the Court
informed Plaintiff that this would be his “final chance” to amend his complaint. The Court allowed
Plaintiff until April 21, 2025, to file “any motion for leave to file an amended Complaint.” Id.
On April 21, 2025, Plaintiff filed a Motion for Amended Complaint [ECF 84], attaching
his proposed TAC as an exhibit [ECF 84-1]. In the proposed TAC, Plaintiff brings nine claims
against seven individual Defendants. See ECF 84-1. Six of the eight claims are brought under the
Eighth Amendment for “Deliberate Indifference” or “Deliberate Medical Indifference.” Id.
Plaintiff also alleges a claim under the Health Insurance Portability and Accountability Act
(HIPAA), a claim alleging “Fraudulent Concealment,” and a claim alleging “Incitement and
Solicitation of Crime.” Id. at 55-56.
5 This matter was reassigned to this Court upon my appointment on October 15, 2024. ECF 70.
6 Any reference from the hearing that is not reflected in the minutes, ECF 82, is audible in the
recording of the hearing.
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 5 of 15

6
Defendant opposes Plaintiff’s Motion. ECF 91. Citing “undue delay, failure to previously
cure deficiencies, and futility,” Defendant argues that Plaintiff is making his complaint a “moving
target” by his “untimely suggestion of new theories of recovery based on the same facts he knew
two years ago.” Id. at 4 (citing Wopsock v. Natchees, No. 06-4215, 279 F. App’x 679, 689 (10th
Cir. May 23, 2008) (unpublished) (affirming district court’s denial of motion to file a second
amended complaint)). Defendant also argues that the statute of limitations has run as to claims
against the proposed individual defendants, thus making amendment futile. Id. at 5. Defendant
argues an additional basis for futility because Plaintiff fails to state any claim in the proposed TAC.
ECF 91 at 7-13.
LEGAL STANDARDS
I. 	Fed. R. Civ. P. 15
Rule 15 of the Federal Rules of Civil Procedure states that after amending a pleading once
as a matter of course, “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). “Refusing leave to amend is generally only justified upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Maloney v. City of
Pueblo, 323 F.R.D. 358, 360 (D. Colo. 2018) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365
(10th Cir. 1993)). The purpose of Rule 15 “is to provide litigants the maximum opportunity for
each claim to be decided on its merits rather than on procedural niceties.” Minter v. Prime Equip.
Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation mark omitted) (quoting Hardin v.
Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 6 of 15

7
ANALYSIS
Claim Against Deputy Kennedy
At the outset, the Court separates7 the claims in Plaintiff’s proposed TAC into two groups:
1) the deliberate indifference claim against Deputy Kennedy and 2) the remainder of claims against
Deputy Kennedy and the other individual defendants.8 As it relates to Plaintiff’s deliberate
indifference claim against Deputy Kennedy, throughout the various iterations of Plaintiff’s
amended pleadings and attempts to amend, he has consistently has alleged that Deputy Kennedy
purposefully 	ignored 	Plaintiff’s 	requests 	for 	medical 	attention 	which 	caused 	a 	delay 	in
administration of insulin, conduct which caused him injury. See ECF 1 at 7-8; ECF 8 at 7; ECF 17
at 5-7. Plaintiff continues to make such allegations in the proposed TAC, alleging that he went on
to “sustain severe injuries as a result and almost lost my life.” See ECF 84-1 at 38-39; 49-50. In
seeking leave to amend to allege the individual liability of Deputy Kennedy as part of ECF 84-1,
this Court finds that it is the result of a good faith attempt to cure the pleading defects that were
identified by both Chief Judge Brimmer and Magistrate Judge Starnella regarding his failure to
adequately allege municipal liability. See Barnes v. Harris, No. 2:12-CV-1010 TS, 2013 WL
6732122, at *9 (D. Utah Dec. 19, 2013) (looking favorably on complaint that “appears to reflect a
good faith attempt to respond” to a court order). It has taken some time and multiple attempts for
7 The Court’s approach in allowing Plaintiff’s Motion to Amend as to some claims and not others
is consistent with Tenth Circuit law. See Jefferson Cnty. School Dist. No. R-1 v. Moody’s
Investor’s Services, Inc., 175 F.3d 848, 859 (10th Cir. 1999) (stating that a “proposed
amendment is futile if the complaint, as amended, would be subject to dismissal.”) (emphasis
added).
8 This includes Plaintiff’s additional claim against Deputy Kennedy stated in Claim Seven. ECF
84-1 at 55. There is no private cause of action under the HIPAA. Wirtz v. Regalado, No. 18-CV-
0599-GKF-FHM, 2020 WL 1016445, at *7 (N.D. Okla. Mar. 2, 2020) (citing Wilkerson v.
Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010)).
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 7 of 15

8
Plaintiff to understand the idea of individual liability vs. municipal liability, a concept that he still
may not fully understand,9 but the Court observes progress as it relates to his claim against Deputy
Kennedy. The Court first observed this progress during the Court’s colloquy with Plaintiff at the
Status Conference when Plaintiff expressed his intention to omit municipal liability claims and
instead pursue claims involving the individual liability of the correctional officers. Plaintiff’s
proposed TAC listing Deputy Kennedy as an individual defendant confirms this progress. ECF 84-
1 at 49. This makes his deliberate indifference claim against Deputy Kennedy less like a “moving
target,” and more like a narrowing one.
Defendant first argues that Plaintiff’s amendment should be denied for undue delay. ECF
91 at 4. The Tenth Circuit has held as it relates to timeliness, “the denial of leave to amend is
appropriate when the party filing the motion has no adequate explanation for the delay.” Rehberg
v. City of Pueblo, 2011 WL 4102287, at *4 (D. Colo. Sept. 14, 2011) (quoting Minter, 451 F.3d at
1206) (internal quotation marks omitted). Here, there is an explanation: this pro se Plaintiff has
been learning how to plead his § 1983 claim against an individual defendant. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (“[a] pro se litigant’s pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings drafted by lawyers.”); Duran v. Muse,
2017 WL 2454317, at *2 (N.D. Okla. June 6, 2017) (noting that “a court may make certain
allowances for a pro se plaintiff,” including allowing leave to file an amended complaint despite a
failure to comply with Fed. R. Civ. P. 15(a)). This Court is mindful of Fed. R. Civ. P. 15’s forgiving
standard and acknowledges Plaintiff’s pro se status and progress in understanding the various
9 The Court notes that Plaintiff’s allegations against Sheriff Curtis Johnson in the proposed TAC
are similar to those making up a claim for municipal liability. For example, Plaintiff alleges “the
deputies used the lacking conditions and unlawful policies and practices enforced and
implemented by Curtis Johnson to actually ensure injuries would occur and in order to establish
circumstance that posed threat to my life.” ECF 84-1 at 49.
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 8 of 15

9
judges’ orders. This Court also notes that Defendant does not argue that it would suffer prejudice
should amendment be granted. ECF 91. In fact, discovery has not yet begun, and the Parties have
yet to participate in a Scheduling Conference.
Additionally, Defendant provides the Court with no cases that would support the denial of
amendment to add Plaintiff’s claim against Deputy Kennedy. Defendant’s citation to Las Vegas
Ice & Cold Storage v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990), is not on point. In
that case, a represented plaintiff asserted a claim for punitive damages nine months after partial
summary judgment was entered and only a few months before trial. Id. at 1185. The timing here
is very different.
Defendant’s last points—about Plaintiff’s failure to cure pleading deficiencies and the
futility of amendment based on Plaintiff’s claims being outside the statute of limitations—are
arguments that this Court finds, as it relates to the deliberate indifference claim against Deputy
Kennedy at least, are best addressed as part of a motion to dismiss under Fed. R. Civ. P. 12(b)(6)
rather than as part of this Rule 15 motion. Multiple courts, especially those working in a referral
capacity, have found this type of argument to be more appropriately addressed by the district judge
as part of a motion to dismiss under Rule 12(b)(6). See Cooper v. Colorado Dept. of Corrections,
No. 21-cv-02411-PAB-NYW, 2022 WL 2063229, at *6 (D. Colo. June 8, 2022) (collecting cases).
Therefore, at this juncture, this Court limits its analysis to whether the proposed amendment is
“patently” futile on its face.10 Id. (citing Romero v. Reams, No. 18-cv-02575-RM-NRN, 2020 WL
6044323, at *5 (D. Colo. Oct. 13, 2020)). See also Swanson v. N. Light Specialty Ins. Co., No. 20-
cv-03778-RMR-NRN, 2022 WL 500294, at *5 (D. Colo. Feb. 18, 2022).
10 This Court maintains its authority to dismiss claims “at any time” in cases where the plaintiff
proceeds IFP. See 28 U.S.C. § 1915(e)(2); see also Fogle v. Pierson, 435 F.3d 1252, 1262 (10th
Cir. 2006).
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 9 of 15

10
This Court does not find Plaintiff’s claim of deliberate indifference to medical needs as
raised against Defendant Kennedy to be patently futile on its face. This Court finds it sufficient for
purposes of the more liberal Rule 15(a) standard that this proposed amendment states the broad
outline of a potentially plausible claim against an individual who allegedly played a personal role
in whether Plaintiff timely received needed medical care during a medical crisis. Furthermore,
with respect to Defendant’s argument that the statute of limitations has run on all claims, this Court
finds that the claim against Defendant Kennedy relates sufficiently back to early attempts to plead
the claim such that adding the claim at this point is not patently futile. See Krupski v. Costa
Crociere S.p.A., 560 U.S. 538, 548-49 (2010) (focusing the inquiry on whether the defendant knew
or should have known that it would be named as a defendant); see also Laratta v. Raemisch, 2014
WL 1237880, at *16 (D. Colo. Mar. 26, 2014) (finding that pro se plaintiff’s misunderstanding
about a defendant’s official capacity constituted a “mistake” under Fed. R. Civ. P. 15(c)(1(C)(ii);
Silva v. Ekis, No. 15-3007-CM, 2017 WL 5465531, at *2 (D. Kan. Nov. 14, 2017) (allowing
amendment since “it is possible that the proposed defendants did have notice of this lawsuit or that
plaintiff might be able to develop a record that would demonstrate they had notice . . .”); Osuagwu
v. Gila Regional Medical Center, 938 F. Supp. 2d 1180, 1191 (D. N.M. 2013) (allowing
amendment when individual defendants had been previously identified in the prior iteration of the
complaint); compare to Pierce v. Amaranto, 276 Fed. App’x 788, 792 (10th Cir. 2008)
(unpublished) (finding denial of amendment was not an abuse of discretion); Silli v. Meininger,
No. 12-cv-00289-LTB-CBS, 2012 WL 1015803, at *6 (D. Colo. Mar. 23, 2012). In circumstances
such as this one, this Court believes it is more appropriate to exercise discretion in allowing
amendment and to address any concern about the potential futility of the claim as part of a later
motion to dismiss. See Smith v. Colorado, No. 20-cv-03107-RM-KLM, 2021 WL 1720862, at *2
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 10 of 15

11
(D. Colo. Apr. 30, 2021) (explaining that there are circumstances when a futility analysis should
be postponed until a motion to dismiss); see Gen. Steel Domestic Sales, LLC v. Steelwise, LLC,
No. 07-cv-01145-DME-KMT, 2008 WL 2520423, at *4 (D. Colo. June 20, 2008) (noting that
“Defendants’ futility argument seems to place the cart before the horse,” preferring to address the
issue as part of a motion under Rule 12) .
This Court therefore recommends that Plaintiff be given leave to pursue this particular
claim against Deputy Kennedy. In doing so, this Court makes no finding as it relates to any
subsequent challenge by Defendant under Fed. R. Civ. P. 12.
Plaintiff’s Claims Against Other Defendants
Plaintiff’s claims against the other individual defendants are more problematic. While
Plaintiff has mentioned, in passing, some of the individual Defendants in prior iterations of his
complaint, see, e.g., ECF 17 at 12 (Deputy Moore); id. at 13 (Deputy Timmerman); id. at 14
(Deputy Sanchez), even construing the facts from his prior pleadings in a light most favorable to
him, Plaintiff has never previously formulated the makings of a valid claim against any individual
defendant other than Deputy Kennedy. And Plaintiff’s proposed TAC fares no better. Plaintiff
offers no specific explanation of why these six individuals are now Defendants.
This Court sees Claim One, a claim of deliberate indifference/inadequate conditions of
confinement against Sheriff Johnson, as another attempt to plead municipal liability. See ECF 84-
1 at 48. Considering Chief Judge Brimmer and Magistrate Judge Starnella’s clear directive that
Plaintiff’s municipal liability claims have been insufficient, without any factual boost in the TAC,
the Court recommends Claim One be dismissed for repeated failure to cure deficiencies, futility of
amendment, and as frivolous under § 1915(d).
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 11 of 15

12
As to the remaining claims against the other individuals, including Claim Seven against
Deputy Kennedy, the Court agrees with Defendant that the delay in bringing them is undue.
Plaintiff offers no explanation of why these individuals are entering the lawsuit as defendants now.
See Turner v. Cedar Mountain Select Dist., No. 4:24-cv-00079-AMA-PK, 2025 WL 2996669, at
*3 (D. Utah Oct. 24, 2025) (quoting Frank v. U.S. West, 3 F. 3d 1357, 1365-66 (10th Cir. 1993)).
“[U]ntimeliness alone is a sufficient reason to deny leave to amend.” Id. (quoting Frank, 3 F.3d at
1365). Additionally, Plaintiff’s lack of specificity about each individual’s involvement would only
lead to the dismissal of these claims, the definition of futility. See Robbins v. Oklahoma, 519 F.3d
1242, 1250 (10th Cir. 2008) (“it is particularly important in such circumstances that the complaint
make clear exactly who is alleged to have done what to whom . . .”) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 565 n.10 (2007)). And as noted above, Plaintiff’s HIPAA claim against
Deputy Kennedy has no merit. Wirtz, 2020 WL 1016445, at *7 	(citing Wilkerson, 606 F.3d at
1267 n.4).
Therefore, Defendant has met its burden that the additional proposed amendments, as
written, would cause undue delay and are patently futile on their face. Plaintiff provides no
adequate explanation for their inclusion nearly three years after Plaintiff originally filed the
Complaint. It would not be more pragmatic or efficient to postpone a futility analysis to a motion
to dismiss as it relates to these claims. Therefore, this Court recommends that the Motion for
Amended Complaint [ECF 84] be denied with respect to them at this time.11
11 Should Plaintiff learn new, specific information to justify the inclusion of an additional claim
or defendant in the lawsuit, the Plaintiff may seek leave to amend under Rule 15.
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 12 of 15

13
MOTION TO APPOINT COUNSEL
On June 23, 2025, Plaintiff filed a Motion for Appointment of Counsel, Motion for
Preservation of Record, Motion for Case Reassignment [ECF 103]. Chief Judge Brimmer
referred the Motion to this Court. ECF 104. Defendant did not respond to the Motion. Plaintiff’s
prior Motions to Appoint Counsel have been denied without prejudice. See ECF 33 at 4; ECF
101.
Although civil litigants enjoy no constitutional right to an attorney, a district court may, in
its discretion, seek volunteer counsel to represent an indigent party in a civil case. See 28 U.S.C.
§ 1915(e)(1); Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). The Court will only seek
appointment of volunteer counsel for an eligible party if consideration of the following factors so
warrants it:
(i) the nature and complexity of the action;
(ii) the potential merit of the claims and defenses of the unrepresented party;
(iii) the demonstrated inability of the unrepresented party to retain an attorney by
other means; and
(iv) the degree to which the interests of justice, including the benefits to the court,
will be served by appointment of counsel.
D.C.COLO.LAttyR 15(f)(1)(B); Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)
(citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)).
In the present case, after considering the relevant factors, the Court determines that
appointing counsel is appropriate. Although the case is not complex by this Court’s standards,
certain legal concepts, including individual/municipal liability, have proven challenging to
Plaintiff. Also, as indicated above, without making any findings, this Court has determined that
one of Plaintiff’s claims has potential merit. Next, Plaintiff has alleged that he has attempted to
retain an attorney. See ECF 82 and ECF 99 at 48. Finally, the appointment of counsel will assist
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 13 of 15

14
the Parties and this Court in bringing this case, which has been pending for nearly three years, to
a merits-based resolution.
As a result, to the extent that Plaintiff’s Motion [ECF 103] seeks the appointment of
counsel, the Motion is granted. To the extent that Plaintiff seeks any other relief, the Motion is
denied.
CONCLUSION
For the reasons stated above, this Court finds that allowing Plaintiff to amend his
Complaint to allege a claim of deliberate indifference against Deputy Paul Kennedy should be
permitted under Fed. R. Civ. P. 15. However, Plaintiff’s other claims against the other Defendants
in their individual or official capacity should not be permitted at this time. As a result, this Court
recommends12 that Plaintiff’s Motion for Leave to Amend [ECF 84] be granted in part as it
relates to his deliberate indifference claim against Deputy Kennedy, and otherwise denied as to
all other claims.
This Court recommends that Plaintiff be given fourteen days to redraft his Third Amended
Complaint to limit it to the claim of deliberate indifference to medical needs against Defendant
Kennedy and to file it onto the case docket sheet as the Third Amended Complaint.
12 Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any
written objections to obtain reconsideration by the District Judge to whom this case is assigned.
Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or
recommendations to which the objections are being made. The District Court need not consider
frivolous, conclusive or general objections. A party’s failure to file such written objections to
proposed findings and recommendations contained in this report may bar the party from a de novo
determination by the District Judge of the proposed findings and recommendations. United States
v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and recommendations within fourteen (14) days after
being served with a copy may bar the aggrieved party from appealing the factual findings and legal
conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v.
Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991)).
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 14 of 15

15
To the extent that Plaintiff’s Motion for Appointment of Counsel, Motion for Preservation
of Record, Motion for Case Reassignment [ECF 103] requests the appointment of counsel, this
Court grants the Motion. As to all other bases and requested relief, the Motion is denied.
Plaintiff is advised that this Order of Appointment will direct the Clerk of Court to
seek counsel from the panel to represent him. However, there is no guarantee that a panel
attorney will undertake volunteer representation in this case. If, after four attempts, the
Clerk is unable to select a member of the Panel who is available and willing to accept
appointment, the clerk shall notify the judicial officer who entered the Appointment Order
of the unavailability of counsel. D.C.COLO.LAttyR 15(f)(2)(E). Until and unless counsel
enters their pro bono appearance on Plaintiff’s behalf, Plaintiff is further advised that he
remains responsible for prosecuting his case, including by attending proceedings scheduled
before the Court, responding to any court orders, and complying with the applicable Federal
Rules of Civil Procedure and the Local Rules of Practice.
The Clerk of Court is directed to select, notify, and appoint counsel from the Civil Pro
Bono Panel to represent Plaintiff in this matter in accordance with D.C.COLO.LAttyR 15(f).
DATED at Denver, Colorado, this 11th day of February, 2026.
BY THE COURT:
Timothy P. O’Hara
United States Magistrate Judge
Case No. 1:23-cv-00616-PAB-TPO Document 120 filed 02/11/26 USDC Colorado
pg 15 of 15