United States District Court, D. Kansas
MICHAEL T. COCHRAN, Plaintiff,
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.
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
Motion to Proceed In Forma Pauperis
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 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.
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
Motion to Appoint Counsel.
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)
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.
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.
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
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.
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 ...