Rigato v. Farris-Hernandez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02921-DDD-CYC
NICHOLAS RIGATO,
Plaintiff,
v.
ALLYSSA CAMEY, et al.,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
This matter is before the Court on the plaintiff’s filing that requests appointment of
counsel, ECF No. 87, (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. However, the Court does not find that appointment of pro bono
counsel is appropriate in this case at this time. Accordingly, for the reasons that follow, the
Motion is DENIED without prejudice.
BACKGROUND
The plaintiff initiated this action by filing a pro se complaint on October 21, 2024, ECF
No. 1, and was subsequently ordered to amend his complaint. ECF No. 13. As a result, the
Amended Complaint, ECF No. 24, is the operative complaint. The plaintiff proceeds pursuant to
28 U.S. C. § 1915.
Case No. 1:24-cv-02921-DDD-CYC Document 89 filed 03/18/26 USDC Colorado
pg 1 of 4

2
The plaintiff alleges that the defendants conspired to commit violations and violated his
First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. ECF No. 24 at 12. The amended
complaint is lengthy and names approximately thirty defendants. Id. at 1–10. The defendants
filed a motion to dismiss in which they argue that the plaintiff’s complaint fails to comply with
Rule 8(a), and in any event, fails to state a claim. ECF No. 55. That motion has not yet been
addressed by the Court.
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 Moaz v. Denver Int’l Airport, 747 F. App’x 708, 711 (10th Cir. 2018) (unpublished) (citing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
Case No. 1:24-cv-02921-DDD-CYC Document 89 filed 03/18/26 USDC Colorado
pg 2 of 4

3
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. The plaintiff states that his case is complex and involves tortious conduct. ECF No. 6–9.
He also says that the defendants are subjecting him to continuous sleep deprivation and is
resulting in him developing a speech impediment, causing him to sweat blood, affecting his
breathing and concentration, and creating memory problems. Id. at 2–6. The plaintiff’s filings,
however, demonstrate his ability to navigate this litigation. For example, the plaintiff was
ordered to amend his complaint and did so successfully, resulting in this case moving forward.
Further, the plaintiff’s filings thus far have not demonstrated an inability to articulate his
arguments to the Court. Indeed, this Motion spans fourteen pages and includes case law and
citations to this District’s Local Rules. The plaintiff’s Motion, then, demonstrates that the
plaintiff, so far, can present his case. Though the plaintiff points to health issues, the Court
currently lacks record evidence showing the precise severity of those health issues or the extent
to which they interfere with the plaintiff’s ability to litigate this case. See Bertolo v. Benezee, 601
F. App’x 636, 640–41 (10th Cir. 2015) (holding that the district court did not abuse its discretion
in denying the plaintiff appointed counsel because the plaintiff did not indicate how his medical
condition would affect his ability to present his case); cf. McCarthy v. Weinberg, 753 F.2d 836,
839-40 (10th Cir. 1985) (holding as an abuse of discretion the district court’s denial of appointed
counsel when the record evidence demonstrated that the plaintiff’s medical condition affected his
eyesight, hearing, ability to communicate, and comprehend the proceedings). As for complexity,
it is true that the currently operative complaint is long and alleges a wide-ranging conspiracy
against the plaintiff spanning multiple facilities. But it is yet unclear to what extent all of those
Case No. 1:24-cv-02921-DDD-CYC Document 89 filed 03/18/26 USDC Colorado
pg 3 of 4

4
factual issues will be live in this case and, as a result, what the case’s actual factual complexity
will be going forward. Further, given the pending motion to dismiss, it is unclear which, if any,
of the plaintiff’s claims are meritorious.
In sum, the complexity of the case is not yet clear, it is yet unclear how meritorious the
plaintiff’s claims are, and the plaintiff so far appears able to present his case to the Court
notwithstanding the health and sleep difficulties he outlines in his motion. Should the facts the
Court has considered materially change — if, for example, the number of defendants and
surviving allegations remain high after resolution of the motion to dismiss — 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”).
CONCLUSION
For the foregoing reasons, the Motion, ECF No. 87, is 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
Case No. 1:24-cv-02921-DDD-CYC Document 89 filed 03/18/26 USDC Colorado
pg 4 of 4