United States District Court, D. Kansas
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES, MOTION TO APPOINT COUNSEL AND ORDER TO SHOW CAUSE
KENNETH G. GALE, Magistrate Judge.
In conjunction with his federal court Complaint, Plaintiff Christopher Nathanuel El-Bay Washington filed a determination by a California Superior Court to allow him to waive court fees. (Doc. 3.) The Court presumed Plaintiff intended that filing to serve as a request that the District of Kansas also waive its court fees. The request was originally denied, without prejudice, because it was not in the proper form for the District of Kansas and therefore did not include the information required by this Court to make a proper determination. (Doc. 4.) Plaintiff has now filed a proper Motion to Proceed Without Prepayment of Fees with an accompanying Affidavit of Financial Status ( IFP Application, Doc. 5, sealed). Attached to that motion are 74 pages of documents constituting an Amended Complaint. Plaintiff has also filed a Motion for Appointment of Counsel (Doc. 6.) Having reviewed Plaintiff's motions, as well as his Complaint (Doc. 1) and Amended Complaint (Doc. 5-1), the Court GRANTS Plaintiff's IFP application (Doc. 5, sealed), but DENIES Plaintiff's request for counsel (Doc. 6) for the reasons set forth below. The Court also ORDERS Plaintiff to SHOW CAUSE why the Court should not recommend to the District Court that his claims be dismissed.
I. Motion to Proceed In Forma Pauperis
Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of an action without prepayment of fees, costs, etc., by a person who lacks financial means. 28 U.S.C. § 1915(a). In so doing, the court considers the affidavit of financial status included with the application. See id.
There is a liberal policy toward permitting proceedings in forma pauperis when necessary to ensure that the courts are available to all citizens, not just those who can afford to pay. See generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987). In construing the application and affidavit, courts generally seek to compare an applicant's monthly expenses to monthly income. See Patillo v. N. Am. Van Lines, Inc., No. 02-2162, 2002 WL 1162684, at *1 (D.Kan. Apr. 15, 2002); Webb v. Cessna Aircraft, No. 00-2229, 2000 WL 1025575, at *1 (D.Kan. July 17, 2000) (denying motion because "Plaintiff is employed, with monthly income exceeding her monthly expenses by approximately $600.00").
In his supporting financial affidavit, Plaintiff indicates he is 51 years old and divorced with no dependant children. (Doc. 5, sealed, at 2-3.) Plaintiff states that he has been incarcerated for the past 14 years, is indigent, and lists no prior employment. ( Id., at 2-4.) As such, he lists no monthly expenses, income, or money on hand. ( Id., at 5-6.) Plaintiff indicates that his ex-wife owns a home, but it does not appear to be titled in his name as well. ( Id., at 4.) He has not filed for bankruptcy. ( Id., at 7.)
Considering all of the information contained in the financial affidavit, Plaintiff has established that his access to the Courts would otherwise be seriously impaired if he is not granted IFP status. The Court therefore GRANTS Plaintiff's motion for IFP.
II. Motion to Appoint Counsel.
The Tenth Circuit has identified four factors to be considered when a court is deciding whether to appoint counsel for an individual: (1) plaintiff's ability to afford counsel, (2) plaintiff's diligence in searching for counsel, (3) the merits of plaintiff's case, and (4) plaintiff's capacity to prepare and present the case without the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985) (listing factors applicable to applications under the IFP statute); Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing factors applicable to applications under Title VII). 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 a precious resource and may discourage attorneys from donating their time. Castner, 979 F.2d at 1421.
In considering the first Castner factor, by granting Plaintiff's IFP motion, the prior Magistrate already determined that Plaintiff has a limited ability to afford counsel. ( Supra. ) As for the third Castner factor, however, this Court finds that Plaintiff has not entirely engaged in a diligent search for counsel. ( See Doc. 3.) The form motion specifically enumerates spaces for Plaintiff to identify six attorneys he has contacted about representation and Plaintiff has only contacted one. The Court is, however, mindful of Plaintiff's limited access to communication while he is incarcerated. Rather than instruct Plaintiff to contact additional counsel, the Court will continue its analysis, which will turn on the remaining two Castner factors - Plaintiff's capacity to represent himself and the merits of his claims. 979 F.2d at 1420-21.
In considering Plaintiff's ability to represent himself, the Court must look to the complexity of the legal issues and Plaintiff's ability to gather and present crucial facts. Id., at 1422. The Court notes that the factual and legal issues in this breach of contract case, to the extent it is able to decipher them from Plaintiff's Complaint, are not unusually complex. Cf. Kayhill v. Unified Govern. of Wyandotte, 197 F.R.D. 454, 458 (D.Kan. 2000) (finding that the "factual and legal issues" in a case involving a former employee's allegations of race, religion, sex, national origin, and disability discrimination were "not complex"). Further, although Plaintiff is not trained as an attorney, and while an attorney might present his case more effectively, this fact alone does not warrant appointment of counsel.
The Court sees no basis to distinguish Plaintiff from the many other untrained individuals and inmates who represent themselves pro se in Courts throughout the United States on any given day. Although Plaintiff is not trained as an attorney, and while an attorney might present his case more effectively, this fact alone does not warrant appointment of counsel. Plaintiff's motion for counsel (Doc. 3) is DENIED on this basis.
III. Sufficiency of Complaint and Order to Show Cause.
The Court also has concerns regarding the remaining Castner factor - the merits of Plaintiff's claim. When a plaintiff is proceeding in forma pauperis, a court has a duty to review the complaint to ensure a proper balance between these competing interests. 28 U.S.C. §1915(e)(2). Section 1915 of Title 28, United States Code, requires dismissal of a case filed under that section if the court determines that the action (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or (3) seeks monetary relief from a defendant who is immune from suit. 28 U.S.C. §1915(e)(2). The purpose of § 1915(e) is "the prevention of abusive or capricious litigation." Harris v. Campbell, 804 F.Supp. 153, 155 (D.Kan. 1992) (internal citation omitted) (discussing similar language contained in § ...