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Harris v. Binder & Binder

United States District Court, D. Kansas

May 29, 2015

TAMMY HARRIS, Plaintiff,
v.
BINDER & BINDER, Defendant.

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

KENNETH G. GALE, Magistrate Judge.

In conjunction with her federal court Complaint, Plaintiff Tammy Harris has filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 3, sealed) as well as a Motion to Appoint Counsel (Doc. 4). On April 10, 2015, the undersigned Magistrate Judge entered an Order (Doc. 5) requiring Plaintiff to supplement her IFP application and financial affidavit (Doc. 3, sealed; Doc. 3-1, sealed) to include the required information and to show cause as to why the Court should not recommend that her IFP application be denied. The Court also instructed Plaintiff to supplement her request for counsel (Doc. 4) to show cause why the Court should not deny her request. Finally, the Court instructed Plaintiff to amend her Complaint (Doc. 1) to show cause why the Court should not recommend to the District Court that her claims be dismissed. ( See generally, Doc. 5.)

Plaintiff failed to respond to the Court's Show Cause Order in the time required. As such, the Court DENIES Plaintiff's request for counsel, RECOMMENDS that the District Court deny Plaintiff's IFP application, and further RECOMMENDS that the District Court dismiss Plaintiff's claims in their entirety.

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 her supporting financial affidavit, Plaintiff indicates she is 49 years old and divorced with no dependant children. (Doc. 3-1, sealed, at 1-2.) She provides none of the required information regarding current or historical employment, nor does she provide information regarding any government benefits or other types of income. ( Id., at 2-5.) She also lists no information regarding her assets or monthly expenses. ( Id., at 5.) As such, the Court has absolutely no basis to determine whether Plaintiff's access to the courts would be significantly impaired should her motion be denied. The Court, therefore, recommends to the District Court that Plaintiff's IFP motion (Doc. 3) be DENIED.

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, as stated above, the Court does not know whether Plaintiff can afford counsel. As discussed below, given the dearth of information in Plaintiff's Complaint, the Court has no ability to determine the merits of her claims, the third Castner factor. This lack of information also makes it impossible for the Court to determine the complexity of Plaintiff's claims, which is relevant to determining whether Plaintiff has the capacity to represent herself, the fourth Castner factor.

As for the second Castner factor, this Court finds that Plaintiff has not engaged in a diligent search for counsel. ( See Doc. 4.) The form motion specifically enumerates spaces for Plaintiff to identify six attorneys she has contacted about representation and Plaintiff has contacted none. She has also failed to contact the requisite six attorneys to inquire as to representation and supplement her motion for counsel as instructed in the Court's prior Show Cause Order. ( See Doc. 5.) These factors, taken in conjunction with the insufficiency of Plaintiff's Complaint (Doc. 1) (discussed infra ), cause the Court to DENY Plaintiff's request for counsel (Doc. 4).

III. Sufficiency of Complaint and Order to Show Cause.

As stated in the Show Cause Order, the Court has major concerns regarding 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).[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 1996 amendment). Sua sponte dismissal under § 1915 is proper when the complaint clearly appears frivolous or malicious on its face. Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991).

In determining whether dismissal is appropriate under § 1915(e)(2)(B), a plaintiff's complaint will be analyzed by the Court under the same sufficiency standard as a Rule 12(b)(6) Motion to Dismiss. See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). In making this analysis, the Court will accept as true all well-pleaded facts and will draw all reasonable inferences from those facts in favor of the plaintiff. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006). The Court will also liberally construe the pleadings of a pro se plaintiff. See Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir.1991). This does not mean, however, that the Court must become an advocate for the pro se plaintiff. Hall, 935 F.2d at 1110; see also Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972). Liberally construing a pro se plaintiff's complaint means that "if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could ...


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