O'Neil v. Herrera-Rivera et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 26-cv-00255-CNS-CYC
SHANNON SHAWN O’NEIL,
Plaintiff,
v.
JULIE HERRERA-RIVERA, individually and in her official capacity,
MARIAH ATENCIO, individually and in her official capacity, and
CITY AND COUNTY OF DENVER,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Plaintiff Shannon Shawn O’Neil moves for appointment of counsel and requests that he
receive an exemption fee to the Public Access to Court Electronic Records (“PACER”) website.
ECF Nos. 12, 13. The Court considers the plaintiff’s motions without awaiting a response from
the defendants. See D.C.COLO.LCivR 7.1(d). Unfortunately, at this point, the plaintiff’s request
for an appointment of counsel is premature and, as such, for the reasons that follow, the Motion
is DENIED without prejudice. The plaintiff’s request for an exemption fee to PACER is
DENIED without prejudice for a failure to demonstrate a need for the exemption.
ANALYSIS
The plaintiff first requests appointment of counsel. 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
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708, 711 (10th Cir. 2018) (unpublished) (citing Rachel v. Troutt, 820 F.3d 390, 396–97 (10th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
those factors and including fourth factor: “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.
At this stage, the plaintiff’s asserted reasons for appointment fall short of carrying that
burden. While the plaintiff would like pro bono counsel, that desire does not carry the burden. To
be sure, “having counsel appointed would . . . assist[] him in presenting his strongest possible
case,” but “the same could be said in any case.” Rucks, 57 F.3d at 979. Indeed, a person’s
financial status does not guarantee the 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); 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.
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Should the facts the Court has considered materially change, the plaintiff may renew his
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”).
The plaintiff also requests an exemption of any PACER fees because he proceeds in
forma pauperis and cannot afford the fees due to his financial hardships. Courts “may exempt
certain persons . . . from payment of the user access fee.” See Electronic Public Access Fee
Schedule, Effective January 1, 2020, https://www.uscourts.gov/court-programs/fees/electronic-
public-access-fee-schedule (last visited March 18, 2026). When considering whether to grant an
exemption to the payment of these fees, a court must find “that [the individual] seeking an
exemption ha[s] demonstrated that an exemption is necessary in order to avoid unreasonable
burdens and to promote public access to information.” See id. But “‘[e]xemptions from PACER
user fees are uncommon,’ and ‘[i]n forma pauperis status alone does not support a request to
waive PACER fees.’” Glenn v. Americo, Case No. 2:24-cv-00184-TL, 2024 WL 5077345, at *1
(W.D. Wash. Dec. 11, 2024) (quoting Katumbusi v. Gary, No. 2:14-cv-1534 JAM AC PS, 2014
WL 5698816, at *4 (E.D. Cal. Oct. 30, 2014)). The plaintiff’s financial status alone, then, is not
sufficient for this Court to conclude that his PACER fees may be waived. The plaintiff asserts
that he cannot monitor the filings in this case because he cannot pay the PACER fees. This
Court, however, mails all filings to the plaintiff. As such, the plaintiff has not demonstrated a
need for an exemption.
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CONCLUSION
For the foregoing reasons, the plaintiff’s Motion for Appointment of Counsel, ECF No.
13, and Motion for PACER Fee Exemption, ECF No. 12, are DENIED without prejudice.
Entered and dated this 18th day of March, 2026, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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