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Smith v. Jennings

United States District Court, District of Kansas

August 15, 2014

THOMAS BRIAN SMITH, Plaintiff,
v.
REX MICHAEL JENNINGS, et al., Defendants.

ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES, MOTION TO APPOINT COUNSEL, AND REPORT & RECOMMENDATION FOR DISMISSAL

KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE

In conjunction with his federal court Complaint, Plaintiff Thomas Brian Smith has filed a Motion to Proceed Without Prepayment of Fees (IFP Application, Doc. 3, sealed), with an accompanying Affidavit of Financial Status (Doc. 3-1). Plaintiff has also filed a Motion for Appointment of Counsel (Doc. 4.)

Having reviewed Plaintiff’s motions, as well as his Complaint (Doc. 1), the Court GRANTS the motion for IFP status (Doc. 3), DENIES the motion to appoint counsel (Doc. 4), and RECOMMENDS DISMISSAL of Plaintiff’s claims.

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 47 years old and divorced with no dependant children. (Doc. 4-1, at 1-2.) Plaintiff is currently unemployed and his only prior employment is a brief stint as a painter at a modest wage. (Id., at 3.) He has received no federal benefits and has not other sources of income, although he did receive food stamps approximately ten months ago. (Id., at 4-5.)

Plaintiff owns no real property and states he is homeless. (Id., at 4.) He does not own an automobile, indicates no cash on hand, and lists no monthly expenses. (Id., at 4-5.) He also lists two other debts. (Id., at 5.) He has not filed for bankruptcy. (Id., at 6.)

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 undersigned 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 three he can identify by name (he lists two others, whose names he “can’t remember”). Rather than instruct Plaintiff to contact additional counsel, the Court will continue its analysis, which will turn on the other 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 case 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 ...


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