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Basic v. Boeing Corp.

United States District Court, D. Kansas

May 12, 2017

STEVEN BASIC, Plaintiff,
v.
BOEING CORPORATION, Defendants.

          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.

         In 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).[1] 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 action.

         I. Motion to Proceed Without Prepayment of Fees.

         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 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 motion.

         Plaintiff 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.)

         Considering 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.

         II. Request for Counsel.

         Plaintiff 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.

         As 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.

         Often 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.

         One of 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”).

         As 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 ...


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