United States District Court, D. Kansas
JOAN E. FARR, pro se, Plaintiff,
DARYL DAVIS, et al., Defendants.
MEMORANDUM & ORDER ON MOTION FOR APPOINTMENT OF
KENNETH G. GALE United States Magistrate Judge.
Joan E. Farr has filed a Motion to Appoint Counsel (Doc. 83)
some 14 months after filing her federal court Complaint.
Having reviewed Plaintiff's motion, the Court
DENIES her request for counsel (Doc. 83).
argues that his case is “quasi-criminal” and
involves the Sixth Amendment in support of a right to
counsel. The Sixth Amendment, however, only guarantees a
right to counsel to a criminal defendant. There is no
Constitutional right to counsel for a plaintiff in a civil
Tenth Circuit has identified four factors to be considered
when a court is deciding whether to appoint counsel for an
individual in a civil case: (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. Counsel who accept appointments in
civil cases generally do so pro bono - that is,
without compensation. 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.
has made no attempt to establish that her financial situation
would make it impossible or even difficult for her to afford
counsel. This alone necessitates the Court's denial of
her motion. Even so, the Court will address the other
listed above, Plaintiff's diligence in searching for
counsel is the second such factor. The form motion to appoint
counsel that is provided by the Court on its website - which
Plaintiff did not use - indicates that Plaintiff is required
to contact at least five attorneys regarding representation.
There is no mention in Plaintiff's motion that she has
attempted to contact any attorneys to seek
representation. This factor also weighs against the
appointment of counsel. Often in such situations, the Court
will require a plaintiff to contact the requisite number of
attorneys before it makes a determination regarding
appointment of counsel. Given that the majority of the
enumerated Castner factors weigh against appointment
of counsel, however, the Court finds it would not be
beneficial to its analysis to require Plaintiff to contact
next factor is the merits of Plaintiff's case. See
McCarthy, 753 F.2d at 838-39 (10th Cir.
1985); Castner, 979 F.2d at 1421. For the purposes
of this motion, the Court does not find Plaintiff's
claims to be frivolous or futile.
analysis concludes with the final Castner factor,
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. 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”).
does not argue that the case is overly complex. Rather, she
merely argues that she “has incurred enough emotional
distress from the defendants in this matter and should not
have to incur any further from having to represent
herself.” (Doc. 83, at 1.) This is not a valid basis
for the Court to appoint counsel. Finally, the Court sees no
basis to distinguish Plaintiff 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. To the contrary, Plaintiff has been
diligent in litigating this case on her own. Plaintiff
successfully filed her federal court Complaint and has
engaged in fairly complex motion practice, providing
reference to relevant federal legal authority in many of her
filings. Although Plaintiff is not trained as an attorney,
and while an attorney might present this case more
effectively, this fact alone does not warrant appointment of
counsel. As such, the Motion to Appoint Counsel (Doc. 83) is
THEREFORE ORDERED that Plaintiff's motion to appoint
counsel (Doc. 83) is DENIED.