United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES, MOTION FOR APPOINTMENT OF COUNSEL, AND
REPORT & RECOMMENDATION FOR DISMISSAL
KENNETH G. GALE United States Magistrate Judge.
conjunction with his federal court Complaint, Plaintiff
Steven Basic has filed a Motion to Proceed Without Prepayment
of Fees (IFP Application, Doc. 2, sealed) with
accompanying Affidavits of Financial Status (Doc. 2-1,
sealed). Plaintiff has also filed a Motion for
Appointment of Counsel. (Doc. 3.) Having reviewed
Plaintiff's motions, as well as his financial affidavit
and Complaint, the Court GRANTS Plaintiff's motion for
IFP status (Doc. 2), DENIES his request for counsel
(Doc. 3), and recommends that Plaintiff's claims be
dismissed for failure to state a viable federal cause of
Motion to Proceed Without Prepayment of Fees.
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
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”).
supporting financial affidavit, Plaintiff indicates he is 82
years old and married. He lists two dependents, but indicates
their ages are 20 years old and 22 years old. (Doc. 2-1,
sealed, at 2.) Because these individuals are legal adults,
they cannot be considered dependents for purposes of this
is currently unemployed and lists the Defendant as his former
employer, from 1995 to 2004. (Id., sealed, at 2-3.)
He lists current income from Social Security as well as a
modest amount from the “pensions, trust funds,
annuities or life insurance payment” category.
(Id., at 4-5.) He owns his home. (Id., at
3.) Although he lists no rent or mortgage payment
(id., at 5), he indicates that the home is not paid
off (id., at 3). He also owns a modest automobile
outright. (Id., at 4.) He enumerates certain other
monthly expenses, including utilities, cable, insurance, and
an unusually large grocery expense. (Id., at 5.) He
also has significant consumer debt. (Id.) He lists a
small amount of cash on hand. (Id., at 4.) He has
not filed for bankruptcy. (Id., at 6.)
all of the information contained in the financial affidavit,
the Court finds that Plaintiff has established that his
access to the Court would be significantly limited absent the
ability to file this action without payment of fees and
costs. The Court GRANTS Plaintiff leave to proceed in
forma pauperis directs that the cases be filed without
payment of a filing fee.
Request for Counsel.
has also filed a motion requesting the appointment of
counsel. (Doc. 3.) 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 (10thCir.
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.
discussed above, Plaintiff's financial situation would
make it impossible for him to afford counsel. The second
Castner factor is Plaintiff's diligence in
searching for counsel. The form motion used by Plaintiff
clearly indicates that he was to “confer with
(not merely contact)” at least five attorneys regarding
legal representation prior to filing the motion. (Doc. 3
(emphasis in original).) The form provides space for the
name, address, date(s) of contact, method of contact, and
response received for six attorneys. Plaintiff has written
letters or called and left messages for three attorneys, one
of whom was the general counsel for Boeing, who obviously
would not be able to represent Plaintiff. (Id., at
2-3.) Regardless, it appears from the motion that Plaintiff
has not actually spoken with, or heard back from, any of
these attorneys. (Id.) He also lists the Director of
the SPEAA, which is a union of aerospace workers. Suffice it
to say, Plaintiff's efforts do not meet the requirement
of communicating with at least five attorneys, which is
clearly stated on the form motion.
in situations such as this, the Court will require a movant
to confer with, and provide the required information
regarding, the requisite number of attorneys before the Court
will consider the application. The Court finds in this
instance, however, that the motion can be resolved on other
factors. As such, requiring Plaintiff to complete this task
would not be useful.
the two remaining Castner factors is Plaintiff's
capacity to prepare and present the case without the aid of
counsel. 979 F.2d at 1420-21. In considering this factor, the
Court must look to the complexity of the legal issues and
Plaintiff's ability to gather and present crucial facts.
Id., at 1422. Given the meandering narrative of
Plaintiff's pro se Complaint, the Court cannot
determine with certainty whether the factual and legal issues
in this case are 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”).
such, the Court cannot determine whether Plaintiff should be
distinguished from the many other untrained individuals who
represent themselves pro se on various types of
claims in Courts throughout the United States on any given
day. Although he is not trained as an attorney, and while an
attorney might ...