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Cochran v. State of Oklahoma

United States District Court, D. Kansas

August 3, 2017

MICHAEL T. COCHRAN, Plaintiff,
v.
STATE OF OKLAHOMA, ET AL., Defendant.

          ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND MOTION TO APPOINT COUNSEL, AND REPORT & RECOMMENDATION ON FOR DISMISSAL

          KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE.

         In conjunction with his federal court Complaint alleging violations of his Constitutional rights, Plaintiff Michael T. Cochran has filed a Motion to Proceed Without Prepayment of Fees (IFP application, Doc. 3, sealed), with an accompanying Affidavit of Financial Status (Doc. 3-1, sealed), as well as a Motion to Appoint Counsel (Doc. 4). Having reviewed Plaintiff's motions, as well as his Complaint (Doc. 1), the Court GRANTS the IFP application and DENIES the Motion to Appoint Counsel. The Court also RECOMMENDS to the District Court that Plaintiff's Complaint be DISMISSED for lack of jurisdiction.

         I. Motion to Proceed In Forma Pauperis

         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 55 years old and single with no dependants. (Doc. 3-1, at 1-2.) Plaintiff is currently unemployed and homeless. (Id.) He has not received unemployment benefits or any other form of income or government assistance in the past twelve months. (Id., at 4-5.) He has only a small amount of cash on hand and no other financial resources.

         Considering all of the information contained in the financial affidavit, Plaintiff has established that his access to the Courts would otherwise be seriously impaired if he is not granted IFP status. Plaintiff's motion for IFP is GRANTED.

         II. Motion to Appoint Counsel.

         Plaintiff has also filed a motion requesting the appointment of counsel. (Doc. 4.) There is no constitutional right to have counsel appointed in civil cases such as this one. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003). “[A] district court has discretion to request counsel to represent an indigent party in a civil case” pursuant to 28 U.S.C. § 1915(e)(1). Commodity Futures Trading Comm'n v. Brockbank, 316 F. App'x 707, 712 (10th Cir. 2008). The decision whether to appoint counsel “is left to the sound discretion of the district court.” Lyons v. Kyner, 367 F. App'x 878, n.9 (10th Cir. 2010) (citation omitted).

         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 (10th Cir. 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 in Section I., 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, at 2 (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 left this portion of the motion blank, leading the Court to believe that he has contacted no attorneys.

         Often in situations such as this, before the Court will consider the application, it will require a movant to confer with, and provide the required information regarding, the requisite number of attorneys. The Court finds in this instance, however, that the motion will be resolved on other factors. As such, requiring Plaintiff to complete this task would not be useful.

         The 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. As discussed in Section III, below, the Court has serious concerns regarding the viability of Plaintiff's claims. This factor thus weighs against the appointment of counsel. The Court's analysis thus turns to 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 ...


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