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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02342-WJM-KLM

FRANKIE L. MCCONNELL,

Plaintiff,

v.

ANDREA CIRBO, Supervisor,

DEBRA REILLY, and

K. O’BRIEN (actually named as KO’Brien),

Defendants.

_____________________________________________________________________

ORDER

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Plaintiff’s untitled Motion to Clarify [Docket No.

26; Filed February 6, 2012] (the “Motion”). Plaintiff makes three requests in the Motion: (1)

an appointment of an attorney; (2) a clarification of the term “de novo;” and (3) an extension

of time in which to submit objections to the Order and Recommendation of United States

Magistrate Judge [#22]. For the reasons set forth below, the Motion is GRANTED in part

and DENIED in part.

The Court does not have the power to appoint an attorney without his or her

consent, Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989), nor

does the Court have funds available to pay an attorney who agrees to represent an indigent

litigant in a civil case. Nevertheless, the Court can seek volunteer counsel to represent a

plaintiff if the Court determines in its discretion that is appropriate to do so. The Clerk of

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the Court maintains a list of pro se cases for which the Court is seeking volunteer counsel.

Placement on this list does not mean that a plaintiff will automatically receive counsel.

Rather, placement on the list results in representation being secured for the plaintiff only

if an attorney volunteers to represent him. Because of the number of cases on the list and

the shortage of volunteer attorneys, placement on the list frequently does not result in

counsel being obtained. In such circumstances, despite placement of his case on the list,

a pro se plaintiff remains responsible for litigating his case himself. 

The Court will only seek volunteer counsel for a pro se plaintiff if a consideration of

the following factors so warrants: (1) the merits of the plaintiff’s claims; (2) the nature of

the factual issues raised in the claims; (3) the plaintiff’s ability to present his claims himself;

and (4) the complexity of the legal issues raised. Rucks v. Boergermann, 57 F.3d 978, 979

(10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)). 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. See Rucks, 57 F.3d at 979.

The legal issues presented in this matter are not overly complex, novel, or

particularly difficult to state or analyze. See Am. Compl. [#9]. The fact that Plaintiff’s

financial situation and incarcerated status has made it difficult for him to obtain

representation does not, by itself, warrant the need for volunteer counsel. Although mindful

of the difficulties faced by pro se parties, courts and legislating bodies have made a

distinction between civil and criminal cases regarding the necessity of counsel. See, e.g.,

Mallard, 490 U.S. at 301 (1989) (“Congress did not intend § 1915[(e] to license compulsory

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appointments of counsel . . . .”); Custard v. Turner, No. 06-cv-01036-WYD-CBS, 2008 WL

4838564, at *1 (D. Colo. Nov. 6, 2008) (unpublished decision) (noting that the court is

without statutory authority to commit federal funds to “require counsel to represent” an

indigent civil litigant). Although there are extraordinary circumstances where fundamental

due process concerns may demand that a plaintiff be provided with counsel, this Plaintiff’s

particular circumstances do not. Plaintiff chose to bring this civil action voluntarily knowing

the limitations he would face due to his financial means, lack of legal training, and

incarcerated status. To the extent that Plaintiff feels that he cannot bear the responsibility

at this time, he may voluntarily dismiss his case without prejudice pursuant to Fed. R. Civ.

P. 41(a). However, while the case is pending, it remains Plaintiff’s legal obligation to

comply with the Federal Rules of Civil Procedure, the Local Rules in this District, and all

orders of this Court. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).

Accordingly, based on the foregoing and the entire record in this case, 

IT IS HEREBY ORDERED that Plaintiff’s request for appointment of counsel is

DENIED. 

IT IS FURTHER ORDERED that Plaintiff’s request for clarification is GRANTED.

As a one-time courtesy to Plaintiff, the Court will provide the definition of “de novo review”

as found in Black’s Law Dictionary (9th ed. 2009): “An appeal in which the appellate court

uses the trial court’s record but reviews the evidence and law without deference to the trial

court’s rulings.”

IT IS FURTHER ORDERED that Plaintiff’s request for an extension of time is

GRANTED. Plaintiff may file objections, if any, to the Order and Recommendation of

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United States Magistrate Judge [#22] no later than February 21, 2012.

Dated: February 7, 2012

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