United States District Court, D. Utah, Central Division
RODNEY S. RATHEAL, Plaintiff,
LINDSAY McCARTHY, SEC; TOM HARVEY, THE SALT LAKE TRIBUNE, Defendants.
A. Kimball Judge.
ORDER DENYING MOTION TO APPOINT COUNSEL (ECF NO.
J. FURSE UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Rodney S. Ratheal's
Motion to Appoint Counsel filed on October 3, 2017. (ECF No.
18.) The Court denied Mr. Ratheal's prior Motion to
Appoint Counsel because he failed to provide a reason for the
request or a declaration demonstrating an inability to afford
counsel. (ECF No. 17.) Mr. Ratheal appeared pro se in this
case but did not file an application to proceed in forma
pauperis. As a result, the Court lacked information
about Mr. Ratheal's financial eligibility for the
appointment of counsel. The Court denied Mr. Ratheal's
Motion to Appoint Counsel without prejudice and informed Mr.
Ratheal that he could file a new Motion to Appoint Counsel
that including a completed copy of an Application to Proceed
in District Court Without Prepaying Fees or Costs so that the
Court could assess his ability to afford counsel.
(Id.) Mr. Ratheal subsequently filed the present
Motion and included the completed form. (ECF Nos. 18
& 19.) As with the prior Motion, Mr. Ratheal's new
Motion provides no reason for his request that the Court
appoint counsel. (ECF No. 18.)
Court previously noted, while defendants in criminal actions
have a constitutional right to representation by an attorney,
(U.S. Const. amend. VI, Fed. R. Crim. P. 44), “[t]here
is no constitutional right to appointed counsel in a civil
case.” Durre v. Dempsey, 869 F.2d 543, 547
(10th Cir. 1989). Indigent parties in civil actions who
cannot obtain counsel 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 an
indigent party. A court has discretion under §
1915(e)(1) to appoint counsel or not. Shabazz v.
Askins, 14 F.3d 533, 535 (10th Cir. 1994). The applicant
bears the burden to convince the court that his or her claim
has enough merit to justify the Court's appointing
counsel. McCarthy v. Weinberg, 753 F.2d 836, 838
(10th Cir. 1985).
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
his claims, and the complexity of the legal issues raised by
the claims.” Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995) (quoting Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991)).
the Court finds that Mr. Ratheal may not be able to afford
counsel, it exercises its discretion under 28 U.S.C. §
1915(e)(1) and declines to appoint Mr. Ratheal counsel at
this time. First, reading Mr. Ratheal's filings
liberally, as the Court must, (e.g., Garza v.
Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010)), Mr.
Ratheal appears to assert negligence and libel claims
pursuant to the Federal Tort Claims Act (FTCA) against two of
the Defendants-the Securities & Exchange Commission
(“SEC”) and Lindsay McCarthy, an SEC
employee-arising out of an SEC investigation and enforcement
action filed in the District of Utah (Case No.
2:12-cv-01120), and a libel claim against the other two
defendants-Salt Lake Tribune and Tom Harvey. (ECF No. 1). Mr.
Ratheal seeks $250, 000, 000 in damages. (ECF No. 5.)
Mr. Ratheal's Complaint provides facts in support of his
claims, it does not appear to the Court at this time that he
is likely to succeed on these claims. Among other things, the
statute of limitations for a libel claim in Utah is one year.
Utah Code Ann. § 78B-2-302(4). Mr. Ratheal's
allegations date from 2012 and 2013. (ECF No. 1.) Mr. Ratheal
filed this lawsuit on September 5, 2017, four to five years
addition, the factual issues in this case do not appear
complex. Mr. Ratheal was a defendant in the underlying
enforcement action that forms the basis for his claims
against the SEC and Ms. McCarthy. Furthermore, Mr.
Ratheal's Motion provides no explanation as to why he
cannot present his claims or pursue this case adequately.
Finally, the legal issues in this case do not appear
reasons stated above, at this time, the Court DENIES Mr.
Ratheal's Motion to Appoint Counsel without prejudice.
 District Judge Dale A. Kimball
referred this case to the undersigned magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B).
 Mr. Ratheal incorrectly states in his
Motion that “[t]he Court has already approved the
plaintiff's application to file the matter in forma