United States District Court, D. Kansas
E. BIRZER United States Magistrate Judge.
matter is before the Court on Plaintiff Teresa Ann Owen's
Motion and Amended Motion to Proceed without Prepayment of
Fees (ECF Nos. 3, 9), and her Motion and Amended Motion to
Appoint Counsel (ECF Nos. 4, 10). For the reasons set forth
below, Plaintiff's Motions to proceed in forma
pauperis (ECF Nos. 3, 9) are GRANTED, and
Plaintiff's Motions for Appointment of Counsel (ECF Nos.
4, 10) are DENIED.
Motions to Proceed Without Payment of Fees
28 U.S.C. § 1915(a), the Court has the
discretion to authorize the filing of a civil case
“without prepayment of fees or security thereof, by a
person who submits an affidavit that . . . the person is
unable to pay such fees or give security thereof.”
“Proceeding in forma pauperis in a civil case
‘is a privilege, not a right-fundamental or
otherwise.'” After careful review of Plaintiff's
attached affidavit of financial resources (ECF Nos. 3-1 and
9-1, sealed), and the comparison of her monthly income to her
monthly expenses, the Court finds she is financially unable
to pay the filing fee.
THEREFORE ORDERED that Plaintiff's Motions to Proceed
without Prepayment of Fees (ECF Nos. 3 and 9) are GRANTED.
Although service of process would normally be undertaken by
the clerk of court under 28 U.S.C. 1915(d) and Fed.R.Civ.P.
4(c)(3), the clerk is directed to stay service of process
pending the District Court's review of the Report and
Recommendation filed simultaneously herein (ECF No.
Motions for Appointment of Counsel
is no constitutional right to counsel in a civil
action. An evaluation of whether to appoint
counsel requires consideration of those factors discussed by
the Tenth Circuit Court of Appeals in Castner v. Colorado
Springs Cablevision,  including: (1) the plaintiff's
ability to afford counsel, (2) the plaintiff's diligence
in searching for counsel, (3) the merits of the
plaintiff's case, and (4) the plaintiff's capacity to
prepare and present the case without the aid of counsel.
Additionally, as in all federal cases, the law requires the
plaintiff to state a viable claim for relief and the court
must have subject matter jurisdiction over that claim. In
consideration thereof, thoughtful and prudent care in
appointing representation is necessary so that willing
counsel may be located.
careful consideration, the Court declines to appoint counsel
to represent Plaintiff. Plaintiff has satisfied the first
prong of the Castner analysis-her inability to
afford counsel-through the financial affidavits provided with
her motions to proceed in forma pauperis (ECF Nos.
3-1 and 9-1, sealed). Additionally, she fulfilled the second
prong of the analysis-diligence in searching for counsel-by
producing the names of more than five attorneys whom she
contacted about the case, along with a detailed description
of her efforts to obtain representation. However, despite
meeting these requirements, the Court finds she cannot meet
the third prong of analysis, as the Court has serious
concerns regarding its ability to adjudicate Plaintiff's
claims. Simultaneously with this order, the Court recommends
this case be dismissed under Fed.R.Civ.P. 12(h)(3) (ECF No.
12) due to a lack of federal subject matter jurisdiction.
Under the circumstances, the request for appointment of
counsel shall be denied.
THEREFORE ORDERED that Plaintiff's Motions for
Appointment of Counsel (ECF Nos. 4 and 10) are DENIED.
Barnett ex rel. Barnett v. Nw.
Sch., No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec.
26, 2000) (citing Cabrera v. Horgas, 173 F.3d 863,
at *1 ...