Carter v. Weber County Strike Force

• Court: District Court, D. Utah
• Decided: June 6, 2024
• Docket: 1:23-cv-00094
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH NORTHERN DIVISION

BRIAN CARTER, MEMORANDUM DECISION AND ORDER DENYING WITHOUT Plaintiff, PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL v. (DOC. NO. 61)

WEBER COUNTY STRIKE FORCE; Case No. 1:23-cv-00094 OFFICER LUNT; and OGDEN POLICE DEPARTMENT, District Judge Tena Campbell

Defendants. Magistrate Judge Daphne A. Oberg

Plaintiff Brian Carter is proceeding in this case without an attorney and in forma pauperis (without paying the filing fee).1 Mr. Carter now moves for appointment of counsel.2 Because Mr. Carter does not provide a reason for his request, the motion is denied without prejudice. While defendants in criminal cases have a constitutional right to representation by an attorney,3 “[t]here is no constitutional right to appointed counsel in a civil case.”4 Appointment of counsel in civil cases is left to the court’s discretion.5 Indigent parties in

1 (See Order Granting Mot. to Proceed in Forma Pauperis, Doc. No. 4; Compl., Doc. No. 5.) 2 (Mot. for Appointment of Counsel, Doc. No. 6.) 3 See U.S. Const. amend. VI; Fed. R. Crim. P. 44. 4 Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). 5 Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994). civil cases may apply for the appointment of counsel under 28 U.S.C. § 1915(e)(1), which allows a court to “request an attorney to represent any person unable to afford counsel.” The applicant has the burden to convince the court his/her/their claim has enough merit to warrant appointment of counsel.6 When deciding whether to appoint counsel, 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 [the] claims, and the complexity of the legal issues raised by the claims.”7 Mr. Carter asks the court to appoint counsel but states no reason or basis for the request, other than that he has been granted leave to proceed in forma pauperis. To

begin with, this statement is inaccurate—Mr. Carter is not proceeding in forma pauperis. Indigent plaintiffs may request to proceed in forma pauperis if they cannot afford the fee to file a case in this court.8 Because Defendant Weber County Strike Force removed this case from state court to federal court,9 that defendant—not Mr. Carter—paid the filing fee. But even if Mr. Carter were proceeding in forma pauperis, as outlined above,

6 McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). 7 Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (internal quotation marks omitted). 8 See DUCivR. 3-2(a). 9 (See Notice of Removal, Doc. No. 2.) this is insufficient to warrant appointment of counsel in a civil case. Accordingly, the court DENIES Mr. Carter’s motion for appointment of counsel’? without prejudice." DATED this 6th day of June, 2024. BY THE COURT:

ooh A. Oberg United States Magistrate Judge

10 (Doc. No. 61.) ‘1 Because the motion is denied without prejudice, Mr. Carter may (if he chooses) file a new motion explaining why, under the factors outlined above, his case warrants the appointment of counsel.