Luesse v. Patterson et al, No. 2:2013cv00114 - Document 8 (D. Utah 2013)

Court Description: MEMORANDUM DECISION denying 5 Motion for Service of Process (Prisoner) ; denying 6 Motion to Appoint Counsel. Signed by Judge David Nuffer on 07/20/2013. (asp)
Download PDF
Luesse v. Patterson et al Doc. 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH _________________________________________________________________ MICHAEL LUESSE, Plaintiff, v. ) ) ) ) ) MEMORANDUM DECISION & ORDER DENYING MOTIONS Case No. 2:13-CV-114 DN District Judge David Nuffer ) ) Defendants. ) _________________________________________________________________ ) TOM PATTERSON et al., Plaintiff, Michael Luesse, has filed a pro se prisoner civil rights complaint.1 Plaintiff's application to proceed in forma pauperis has been granted. Plaintiff now moves for appointed counsel and service of process. The Court first considers the motion for appointed counsel. Plaintiff has no constitutional right to counsel.2 However, the Court may in its discretion appoint counsel for indigent inmates.3 "The burden is upon the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel."4 When deciding whether to appoint counsel, the district court should consider a variety of factors, "including 'the merits of the litigant's claims, the nature of the factual issues raised in 1 See 42 U.S.C.S. § 1983 (2013). 2 See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987). 3 See 28 U.S.C.S. § 1915(e)(1) (2013); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). 4 McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). Dockets.Justia.com the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims.'"5 Considering the above factors, the Court concludes here that (1) it is not clear at this point that Plaintiff has asserted a colorable claim; (2) the issues in this case are not complex; and (3) Plaintiff is not incapacitated or unable to adequately function in pursuing this matter. Thus, the Court denies for now Plaintiff's motion for appointed counsel. Next, the Court denies for now Plaintiff's motion for service of process. The Court has yet to make a final determination whether to dismiss Plaintiff's complaint or order it to be served upon Defendants.6 Plaintiff need do nothing further to trigger this process. IT IS HEREBY ORDERED that: (1) Plaintiff's request for appointed counsel is DENIED7; however, if it later appears that counsel may be needed or of specific help, the Court may ask an attorney to appear pro bono on Plaintiff's behalf. No further motions of this nature are necessary. 5 Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams, 926 F.2d at 996); accord McCarthy, 753 F.2d at 838-39. 6 See 28 U.S.C.S. § 1915A (2013). 7 (See Docket Entry # 6.) 2 (2) Plaintiff's motion for service of process is DENIED8 however, if, upon further review, it appears that this case has merit and states a claim upon which relief may be granted, the Court may order service of process. DATED this 20th day of July, 2013. BY THE COURT: _____________________________ DAVID NUFFER United States District Judge 8 (See Docket Entry # 5.) 3