Eatchel v. Berg et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GARY EATCHEL,
Plaintiff,
v.
JASON BERG, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
MOTION FOR A COPY OF LOCAL
RULES
Case No. 2:25-CV-566-HCN
Howard C. Nielson, Jr.
United States District Court
In this pro se prisoner civil-rights action, the Plaintiff moves for appointment of counsel
and to be sent a copy of the Local Rules of Practice. See Dkt. Nos. 3, 10. The court denies the
motions.
“As a civil litigant, 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;
at best, federal statute authorizes it 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 attorney to represent any
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.
Rachel v. Troutt, 820 F.3d 390, 397 n.7 (10th Cir. 2016); see also Mallard v. United States Dist.
Ct. for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (stating courts may not “require an unwilling
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person unable to afford counsel.”); McCleland v. Raemisch, No. 20-1390, 2021 U.S. App.
LEXIS 29490, at *15 n.3 (10th Cir. Sept. 30, 2021) (unpublished) (explaining that when
prisoner-plaintiffs “refer to appointing counsel,” they “really refer to a request that an attorney
take the case pro bono”). The Plaintiff has the burden of convincing the court that his claims
have enough merit to warrant such a request of counsel, a burden that he has not addressed. See
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). Further, “[i]t is not enough” for a
plaintiff 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 a plaintiff at no cost,
the court considers a variety of factors, including “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) (cleaned up); accord McCarthy, 753 F.2d at 838–39. Although the Plaintiff has
not argued the applicability of these factors, the court considers them in concluding at this time
that the Plaintiff’s claims may not be colorable, the issues in this case are not complex, and the
Plaintiff does not appear to be too incapacitated or unable to adequately function in pursuing this
matter. Thus, the Court denies for now the Plaintiff’s motion for appointed counsel.
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) (unpublished) (“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) (unpublished) (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 that courts that indiscriminately appoint “volunteer counsel to undeserving claims
will waste a precious resource and may discourage attorneys from donating their time”).
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* 	* 	*
For the foregoing reasons,
(1) Docket Number 3, the Plaintiff’s motion for appointed counsel, is DENIED. If,
however, after the case develops further, it appears that counsel may be needed or of specific
help, the court may later conclude that it is appropriate to ask an attorney to appear pro bono on
the Plaintiff’s behalf. Going forward, the court will continually reevaluate the need for counsel,
and thus no further motions for appointed counsel are needed.
(2) Docket Number 10, the Plaintiff’s motion for a copy of this court's local rules, is
DENIED. The Plaintiff has not included the fifteen-dollar fee required for that copy.
IT IS SO ORDERED.
DATED this 2nd day of March, 2026.
BY THE COURT:
_________________________________
Howard C. Nielson, Jr.
United States District Judge
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