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Jackson v. U.S. Department of Army

United States District Court, District of Kansas

May 15, 2014

DEBORAH B. JACKSON Plaintiff,
v.
U.S. DEPARTMENT OF ARMY, et al. Defendants.

REPORT AND RECOMMENDATION ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND ORDER ON MOTION FOR APPOINTMENT OF COUNSEL

K. Gary Sebelius U.S. Magistrate Judge

This matter comes before the court upon Plaintiff Deborah B. Jackson's Motion to Proceed Without Prepayment of Fees (ECF No. 3) and Motion for Appointment of Counsel (ECF No. 4). Having reviewed Plaintiffs motions, the Court is prepared to rule.

I. Motion to Proceed In Forma Pauperis

Pursuant to 28 U.S.C. § 1915(a), the Court may authorize commencement of a civil action "without prepayment of fees or security therefor, by a person who submits an affidavit that... the person is unable to pay such fees or give security therefor." To succeed on a motion to proceed in forma pauperis, the movant must show a financial inability to pay the required fees.[1] "Proceeding in forma pauperis in a civil case 'is a privilege, not a right—fundamental or otherwise.[2]The decision to grant or deny in forma pauperis status under section 1915 lies within the sound discretion of the trial court.[3] In denying these motions, however, courts must not act arbitrarily or deny the application on erroneous grounds.[4]

After careful review of the financial information provided in Plaintiffs affidavit of financial status (ECF No. 3-1), the undersigned finds Plaintiffs financial situation does not warrant a waiver of the filing fee. When evaluating a motion for leave to proceed in forma pauperis, courts generally seek to compare an applicant's monthly expenses to monthly income.[5]Plaintiff and her spouse receive a sizeable amount of income from social security benefits. These benefits alone exceed her monthly expenses by more than $1, 000. Additionally, Plaintiffs spouse is currently employed and receives a substantial annual salary. When considering Plaintiffs spouse's salary, Plaintiffs income exceeds her monthly expenses by more than $4, 000. The court also notes that Plaintiff has no dependents, and several of her expenses appear to be discretionary. For example, her monthly expenses include payments for cable and balances owed for purchases made at Nebraska Furniture Mart, Sears, and Menards.

A court may also consider the applicant's assets (e.g., equity in real estate), not merely her income, in determining the applicant's ability to pay the filing fee.[6] Plaintiffs affidavit states that she owns her home outright, which she estimates to have a value of $62, 000. Plaintiff also affirms that she owns three automobiles with an estimated total value of $7, 500. The automobiles she owns include a 1996 Chevrolet Silverado, a 1999 Mercedes 5320, and a 2007 Chrysler PT Cruiser.

Based on the foregoing analysis, the Court finds Plaintiff has sufficient resources to pay the filing fee. The undersigned Magistrate Judge recommends to the Honorable District Judge, Carlos Murguia, that Plaintiff Deborah B. Jackson's Motion to Proceed Without Prepayment of Fees (ECF No. 3) be denied.[7]

Pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), and D. Kan. Rule 72.1.4(b), Plaintiff shall have fourteen (14) days after service of a copy of this recommendation to file any written objections to the court's recommendation. Plaintiff must file any objections within the fourteen-day period if she wants to have appellate review of the proposed findings of fact, conclusions of law, or recommended disposition. If no objections are timely filed, no appellate review will be allowed by any court.

II. Motion for Appointment of Counsel

In civil cases, there is generally no constitutional right to the appointment of counsel.[8] Nevertheless, it is within the court's discretion to "request an attorney to represent any person unable to afford counsel."[9] "This provision, however, is limited to persons proceeding in forma pauperis and does not provide a statutory right to counsel."[10] Because the Court recommends the denial of Plaintiff s request to proceed in forma pauperis, the Court finds it improper to appoint counsel under 28 U.S.C. § 1915(e).

Even if Plaintiff were proceeding in forma pauperis, appointment of counsel is unwarranted. When considering whether to appoint counsel for litigants proceeding in forma pauperis, courts must consider all relevant 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.[11] After a review of the record, the Court finds that Plaintiff is able to adequately communicate with the court and the factual and potentially the legal issues presented in this case do not appear complex on their face. Moreover, the Court has doubt about the merits of Plaintiff s claims. After careful consideration of all relevant factors, the Court denies Plaintiffs Motion for Appointment of Counsel (ECF No. 4).

A copy of this order was sent to Plaintiff Deborah B. Jackson by certified mail.

IT IS THEREFORE RECOMMENDED to the Honorable District Judge, Carlos Murguia, that Plaintiff Deborah B. Jackson's Motion to Proceed Without Prepayment of Fees (ECF No. 3) be denied.

IT IS FURTHER ORDERED that Plaintiff Deborah B. Jackson's Motion for Appointment of Counsel (ECF No. 4) is denied.

IT IS SO ORDERED.


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