United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
March 17, 2017, plaintiff filed a Complaint against the
Commissioner of the Social Security Administration. Doc. 1.
Her complaint appears to seek judicial review under 42 U.S.C.
§ 405(g) of a decision of the Commissioner of the Social
Security Administration denying benefits. Id. at
4-5. Contemporaneously with filing her Complaint, plaintiff
filed two motions: (1) Motion to Proceed Without Prepayment
of Fees (Doc. 3); and (2) Motion For Appointment of Counsel
(Doc. 4). The court considers these two motions, separately,
to Proceed Without Prepayment of Fees
Plaintiff has moved for leave to file this action without
payment of fees or costs. Doc. 3. She has submitted an
affidavit of financial status supporting her request. Under
28 U.S.C. § 1915(a)(1), the court may authorize a person
to commence an action without prepayment of fees after the
submission of an affidavit demonstrating an inability to pay.
The court has broad discretion to grant or deny permission to
proceed in forma pauperis. United States v. Garcia,
164 F. App'x 785, 786 n.1 (10th Cir. 2006). But the court
cannot act arbitrarily or deny an application on erroneous
grounds. Id. “[T]he movant must show a
financial inability to pay the required filing fees.”
Id. (quoting Lister v. Dep't of the
Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005)).
reviewing plaintiff's financial affidavit, the court
finds that plaintiff has made a sufficient showing that she
is unable to pay the required filing fees. The court thus
grants plaintiff's request for leave to file this action
without payment of fees, costs, or security under 28 U.S.C.
For Appointment of Counsel
also moves the court for an order appointing counsel to
represent her in this case. Unlike a criminal case, a party
in a civil case has no constitutional right to appointment of
counsel. Durre v. Dempsey, 869 F.2d 543, 547 (10th
Cir. 1989). Under 28 U.S.C. § 1915(e)(1), the court in
its discretion may appoint counsel in a civil action to
represent a person proceeding in forma pauperis who is unable
to afford counsel. See Miller v. Glanz, 948 F.2d
1562, 1572 (10th Cir. 1991); 28 U.S.C. § 1915(e)(1)
(“The court may request an attorney to represent any
person unable to afford counsel.”); see also Ekis
v. Comm'r of Soc. Sec., Civ. A. No. 96-2418-JWL,
1996 WL 633850, at *1 (D. Kan. Oct. 28, 1996) (applying 28
U.S.C. § 1915(e) in a Social Security case). When
determining whether to appoint counsel, the district court
should carefully consider all the circumstances, including
whether the plaintiff has a colorable claim. Hill v.
SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.
2004); Rucks v. Boergermann, 57 F.3d 978, 979 (10th
Cir. 1995). As the Tenth Circuit has explained, “[t]he
burden is on the applicant to convince the court that there
is sufficient merit to [her] claim to warrant the appointment
of counsel.” Hill, 393 F.3d at 1115 (quoting
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir.
1985)). “Only in those extreme cases where the lack of
counsel results in fundamental unfairness will the district
court's decision be overturned.” Id.
(quoting McCarthy, 753 F.2d at 839 and explaining
that, in McCarthy, “a prisoner with multiple
sclerosis, diminished eyesight, hearing, and ability to
communicate who attended court in a wheelchair and needed to
present complex medical issues requiring expert opinion
should have been appointed counsel”).
court finds that the plaintiff has a colorable claim, the
court should “consider the nature of the factual issues
raised in the claims and ability of the plaintiff to
investigate the crucial facts.” Rucks, 57 F.3d
at 979 (citation and internal quotation marks omitted). The
court should consider the following factors: (1) the merits
of the litigant's claims, (2) the nature of the factual
issues raised in the claims, (3) the litigant's ability
to present his claims, and (4) the complexity of the legal
issues raised by the claims. Id.; see also
Hill, 393 F.3d at 1115. The court also will consider
whether the plaintiff has made a diligent attempt to secure
counsel through his or her own efforts. Castner v. Colo.
Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir.
1992) (applying the rule in a Title VII case under 42 U.S.C.
plaintiff seeks review of the Commissioner's decision
denying plaintiff's application for benefits under the
Social Security Act, the court cannot determine whether
plaintiff's claim is a colorable one, and likewise cannot
meaningfully consider the above factors, until the
Commissioner answers the complaint and files the
court thus denies plaintiff's motion at this time without
prejudice to refiling. If plaintiff continues to desire
counsel, she may refile the motion after the Commissioner
files her Answer along with the Administrative Record as
required under D. Kan. Rule 83.7.1. The court is aware that
most attorneys who practice Social Security appeals before
our court do not charge a fee for services rendered in a
Social Security case unless the appeal is successful and the
court ultimately awards benefits. In such a case, attorney
fees are limited by the Social Security Act to 25% of
past-due benefits. But, plaintiff states that she has
contacted only one attorney about her case. The court expects
plaintiff to conduct a more diligent search than the one she
has completed so far. Plaintiff could secure the services of
an attorney even after filing her Complaint pro se. The court
thus encourages plaintiff to continue to seek representation
before the Commissioner files her Answer and the
Administrative Record. To that end, plaintiff should contact
the Lawyer Referral Service of the Kansas Bar Association
(1-800-928-3111) and ask for the names of attorneys who
represent social security disability claimants.
IS THEREFORE ORDERED BY THE COURT THAT
Motion for Leave to Proceed Without Prepayment of Fees (Doc.
3) is granted. The Clerk shall prepare a summons under
Fed.R.Civ.P. 4 on plaintiff's behalf. The Clerk shall
issue the summons to the United States Marshal or Deputy
Marshal, who the court appoints under Fed.R.Civ.P. 4(c)(3),
to effect service.
IS FURTHER ORDERED THAT
plaintiff's Motion for Appointment of Counsel is denied
without prejudice to refile after the Commissioner files her