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Roudybush v. Jennings

United States District Court, D. Kansas

November 17, 2014

JOHN ROUDYBUSH, 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, District Judge.

In conjunction with his federal court Complaint (1), Plaintiff John Roudybush 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 52 years old and married with no listed dependant children. (Doc. 3-1, at 1-2.) Plaintiff is currently self employed and does not list his income. ( Id., at 2.) This makes it impossible for the Court to determine if his access to the Courts would be restricted if he is required to pay the filing fee. He also states that he "feel[s] it is not important" to list the make, model, or value of his automobile. ( Id., at 4.) This information has, however, been determined to be important to the Court's analysis of a plaintiff's financial status. He also refuses to list the amount of cash he has on hand, has provided no information regarding any real property he or his wife may own, and does not definitively answer whether or not he has ever filed for bankruptcy. ( Id., at 3-6.) He has not, however, received any government benefits in the past year. ( Id., 4-5.)

Considering all of the information contained in the financial affidavit, Plaintiff has failed to establish that his access to the Courts would otherwise be seriously impaired if he is not granted IFP status. Typically in this situation, the Court would require Plaintiff to submit the required information before issuing a ruling on the IFP motion. Rather than require Plaintiff to submit the required information, however, the Court will GRANT his motion for IFP. Given the dearth of financial information provided by Plaintiff, the undersigned Magistrate Judge did not have sufficient facts regarding Plaintiff's monetary situation to justify a recommendation that the motion be denied. Granting Plaintiff's insufficiently supported motion best served the interests of judicial economy given the Court's recommendation of dismissal, discussed infra.

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. Although Plaintiff has not established his limited ability to afford counsel, the Court will not further consider this factor given the analysis contained above.

As for the third Castner factor this Court finds that Plaintiff has not engaged in any - let alone a diligent - search for counsel. ( See Doc. 4.) The form motion specifically enumerates spaces for Plaintiff to identify six attorneys he has contacted about representation. ( Id. ) Plaintiff apparently has contacted none. Rather than instruct Plaintiff to contact the requisite number of 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 appointment of counsel. Plaintiff's motion for counsel (Doc. 6) is DENIED on this basis. The Court will now address the deficiencies of Plaintiff's Complaint.

III. Sufficiency of Complaint and R&R for Dismissal.

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).[1] 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 § 1915(d), prior to the ...


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