Phillips v. Ross et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
GARY PHILLIPS,
Plaintiff,
v.
CASSIDY ROSS, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
APPOINT COUNSEL
Case No. 2:23-cv-00929-TC
Judge Tena Campbell
Plaintiff Gary Phillips, who is a self-represented inmate at the Utah State Correctional
Facility, brings this civil rights action under 42 U.S.C. § 1983. On January 5, 2026, the court
dismissed several of his claims but found that Mr. Phillips had potentially stated a claim against
Defendant Cassidy Ross. (Mem. Decision & Order, Jan. 5, 2026, ECF No. 37 at 5.) Mr. Phillips
has now filed a motion asking the court to appoint counsel. (ECF No. 41.)
“As a civil litigant, [a plaintiff] has no Sixth Amendment right to counsel.” Johnson v.
Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). And the court lacks authority to appoint
counsel, although federal statute authorizes the court to ask counsel to agree to represent an
indigent plaintiff free of charge.1 See 28 U.S.C. § 1915(e)(1) (“The court may request an
1 The Tenth Circuit has noted:
Each year, the district court receives hundreds of requests for legal representation
and only a small number of attorneys are available to accept these requests.
Accordingly, the district court must use discretion in deciding which cases
warrant a request for counsel. To do otherwise would deprive clearly deserving
litigants of an opportunity to obtain legal representation. The dilemma is
unfortunate for litigants [denied counsel]. But the dilemma [i]s not the district
court's fault; that dilemma [i]s the product of the court's lack of authority to
compel legal representation or to reimburse attorneys for their time.
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attorney to represent any person unable to afford counsel.”); McCleland v. Raemisch, No. 20-
1390, 2021 WL 4469947, at *5 n.3 (10th Cir. Sept. 30, 2021) (explaining that, in a civil case
“when [the court] refer[s] to appointing counsel, [the court] really refer[s] to a request that an
attorney take the case pro bono”). Mr. Phillips bears the burden of convincing the court that his
claims have enough merit to warrant the appointment of counsel. McCarthy v. Weinberg, 753
F.2d 836, 838 (10th Cir. 1985). But “[i]t is not enough” for Mr. Phillips to argue that he needs
help “in presenting his strongest possible case, as the same could be said in any case.” Steffey v.
Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (cleaned up).
Instead, in deciding whether to ask volunteer counsel to represent Mr. Phillips free of
charge, the court considers a variety of factors, such as “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.” Williams, 926 F.2d at 996; accord
McCarthy, 753 F.2d at 838–39. Considering the above factors, the court concludes that—at this
time—Mr. Phillips’s claims may not be colorable, the issues in this case are not complex, and
Mr. Phillips is not too incapacitated or unable to adequately function in pursuing this matter.
Therefore, at this time the court denies without prejudice Mr. Phillips’s motion to appoint
counsel.
Rachel v. Troutt, 820 F.3d 390, 397 n.7 (10th Cir. 2016); see also Mallard v. U.S. Dist. Ct. for S.
Dist. of Iowa, 490 U.S. 296, 298 (1989) (holding that courts may not “require an unwilling
attorney to represent an indigent litigant in a civil case”); Greene v. U.S. Postal Serv., 795 F.
App’x 581, 583 (10th Cir. 2019) (“In most legal communities, only a limited number of
attorneys are willing to take these cases. Thus, the district court [must] decide how to maximize
the benefit from these local resources.”); Gross v. GM LLC, 441 F. App’x 562, 567 (10th Cir.
2011) (observing that courts rarely request counsel to represent parties in civil actions); Castner
v. Colo. Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (cautioning courts that
indiscriminately appointing “volunteer counsel to undeserving claims will waste a precious
resource and may discourage attorneys from donating their time”).
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ORDER
For the foregoing reasons, the court ORDERS as follows:
Mr. Phillips’s motion for appointed counsel (ECF No. 41) is DENIED. But if, after the
case develops further, it appears that counsel may be needed or of specific help, the court may
ask an attorney to appear pro bono on Mr. Phillips’s behalf. The court will continually
reevaluate the need for counsel; as a result, no further motions for appointed counsel are needed.
DATED this 30th day of January, 2026.
BY THE COURT:
___________________________
Tena Campbell
United States District Judge
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