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Jackson v. Park Place Condominiums Association, Inc.

United States District Court, Tenth Circuit

February 6, 2014



Gerald L. Rushfelt, United States Magistrate Judge

Before the Court is Plaintiff’s Motion for Appointment of Counsel (ECF 3). For the reasons set out below, the Court denies the motion.

I. Relevant Factual Background

Plaintiff pro se commenced this action on December 6, 2013 by filing a civil complaint. Her complaint alleges housing discrimination in violation of her civil rights. The Court granted Plaintiff’s motion to proceed in forma pauperis (ECF 5).

II. Motion for Appointment of Counsel

In general, there is no constitutional right to appointment of counsel in a civil case.[1] For parties proceeding in forma pauperis, 28 U.S.C. § 1915(e)(1) provides discretionary authority to “request an attorney to represent any person unable to afford counsel.”[2] The provision, however, does not provide a statutory right to counsel.[3]

Under § 1915(e)(1), the Court has broad discretion to request counsel to provide repre-sentation.[4] When deciding whether to request an attorney to represent an indigent party under § 1915(e)(1), the courts evaluate the merits of the litigant’s claims, “the nature and complexity of the factual and legal issues, ” and the litigant’s ability to investigate the facts and present the claims.[5]The party seeking counsel under § 1915(e)(1) has the burden “to convince the court” that asserted claims have sufficient merit to warrant the Court requesting an attorney to represent the movant.[6]

To warrant appointment of counsel, Plaintiff must affirmatively show that she asserts meritorious claims. But she makes no attempt to demonstrate the merits of her claims in her motion for appointment. Consequently, the Court is left to consider her complaint. Her complaint standing alone, however, provides an insufficient basis to find that this action has sufficient merit to warrant appointment of counsel.

Nothing before the Court, moreover, suggests that Plaintiff needs an attorney to adequately present her case. The factual and legal issues in this housing discrimination case are not complex. Plaintiff has not shown any reason why she cannot adequately research and investigate the case on her own. Her pleadings and written submissions reflect some understanding of court rules and procedures, and she has access to local law libraries. At this stage of the proceedings, it is unclear whether the evidence in this case will consist of conflicting testimony so as to require skill in the presentation of evidence and cross-examination or whether the appointment of counsel will shorten trial or assist in a just determination. The Court finds that Plaintiff has not met her burden for the appointment of counsel under 28 U.S.C. § 1915(e)(1).

In addition § 1915(e)(1), parties to an action for discrimination in housing may seek the appointment of counsel under 42 U.S.C. § 3613(b)(1), which provides: “[u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may—(1) appoint an attorney for such person . . .”[7] In determining whether to appoint an attorney under this statute, the Kansas District Court has held that:

Although little case law exists on the appointment of an attorney by the court under 42 U.S.C. § 3613(b), the similar nature of the underlying legal actions and the similar statutory language permitting the appointment of an attorney, the Court finds case law on the appointment of an attorney under 42 U.S.C. § 2000e–5 to be instructive on applying the provisions of 42 U.S.C. § 3613(b).[8]

For actions brought under Title VII, 42 U.S.C. § 2000e-5(f)(1) provides discretionary authority for appointing counsel “in such circumstances as the court may deem just.”[9] This statute provides no statutory right to counsel—it is merely a “a statutory right to request appointed counsel at court expense.”[10]

The Court has “extremely broad” discretion to appoint counsel under § 2000e-5(f)(1).[11] To guide the court’s discretion, the Tenth Circuit has identified factors that courts consider when evaluating a motion for appointment of counsel.[12] Appointment of counsel is only appropriate under § 2000e-5(f)(1) after the plaintiff has affirmatively shown “(1) financial inability to pay for counsel; (2) diligence in attempting to secure counsel; and (3) meritorious allegations of discrimination.”[13]In close cases, the Court should also consider whether the plaintiff has the “capacity to present the case without counsel.[14]

When considering appointment of counsel, the Court remains mindful that Congress has provided no mechanism for compensating appointed attorneys.[15] “Thoughtful and prudent use of the appointment power is necessary so that willing counsel may be located without the need to make coercive appointments. The indiscriminate appointment of volunteer counsel to undeserving claims will waste precious resource and may discourage attorneys from donating their ...

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