                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 16 1998
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 CHARLES R. MORALES,

          Plaintiff-Appellant,

 v.                                                    No. 98-3200
                                                 (D.C. No. 97-4200-KHV)
 UNITED STATES POSTAL                                   (D. Kan.)
 SERVICE,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Charles Morales, appearing pro se, appeals the district court’s denial of

appointment of counsel in his employment discrimination action. We exercise


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

       Morales filed an action against the United States Postal Service and the

Postmaster General on August 15, 1997, claiming he had been discharged on

August 16, 1994, in violation of Title VII and the Rehabilitation Act of 1973. He

was granted leave to proceed in forma pauperis and asked for appointment of

counsel. The magistrate judge denied his request on November 17, 1997, and

Morales continued to pursue the case pro se. He filed a motion for summary

judgment and oppositions to defendants’ dispositive motions, and he appeared at a

pretrial conference. The district court dismissed part of Morales’ claims, but

allowed two claims to proceed to trial. Morales represented himself at a jury

trial. One claim under the Rehabilitation Act was dismissed at the conclusion of

Morales’ case-in-chief. The jury found in favor of defendants on the remaining

Title VII retaliation claim.

       Morales contends on appeal the district court erred in denying his

application for appointment of counsel. We review a denial of appointment of

counsel in a civil case for abuse of discretion.       Rucks v. Boergermann , 57 F.3d

978, 979 (10th Cir. 1995). The district court should consider the merits of the

litigation, the factual issues raised, the litigant’s ability to present his claims, and

the complexity of the legal issues involved.         Id. When the plaintiff is indigent,

the district court has discretion to appoint counsel when, under the totality of


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circumstances, the denial of counsel would result in a fundamentally unfair

proceeding. See McCarthy v. Weinberg , 753 F.2d 836, 839-40 (10th Cir. 1985).

      The record does not contain Morales’ application for appointment of

counsel, the magistrate’s order denying the application, or a copy of the trial

transcript. In the absence of the magistrate’s order, we will not assume the

magistrate failed to consider the required factors in exercising its discretion. In

any event, based on our review of the limited record, we are not convinced the

denial of counsel resulted in a fundamentally unfair proceedings. In particular,

the pleadings filed by Morales indicate he had a “firm grasp of the fundamental

issues in his case,” Rucks , 57 F.3d at 979, and was able to present those issues to

the district court in a coherent fashion. Similarly, the orders demonstrate the

court understood and gave fair consideration to Morales’ claims. There is no

indication of any special circumstances on the part of Morales (e.g., speech

impediment, limited mobility, difficulty in communicating, etc.) that would have

warranted appointment of counsel.

      AFFIRMED. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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