United States District Court, D. Kansas
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND MOTION TO APPOINT COUNSEL, AND REPORT &
RECOMMENDATION OF DISMISSAL
KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE.
conjunction with his federal court Complaint, pro se
Plaintiff John Roudybush has filed a Motion for Leave to
Proceed In Forma Pauperis (Doc. 3, sealed) with
supporting financial affidavit (Doc. 3-1, sealed) as well as
a Motion to Appoint Counsel (Doc. 4). Having reviewed
Plaintiff's motions, as well as his Complaint, the Court
GRANTS IFP application and DENIES Plaintiff's
request for counsel. Further, the Court RECOMMENDS that the
District Court DISMISS Plaintiff's claims in their
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 54
years old and single with an infant, who he lists as a
“companion, ” identified as a dependent. (Doc.
3-1, sealed, at 1-2.) He indicates he provides a small amount
of monthly support for the infant. (Id., at 2.) He
is currently unemployed but previously worked as a manager or
sales person making a steady weekly wage. (Id., at
2-3.) He owns real property, but apparently owes
significantly more than the property is worth (Id.,
at 3.) He does not own an automobile. (Id., at 4.)
lists no cash on hand or income from other sources such as
government benefits. (Id., at 4-5.) He enumerates
typical monthly expenses, including rent, groceries, and
utilities in addition to significant debts. (Id., at
5.) He has never filed for bankruptcy. (Id. at 6.)
all of the information contained in his 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 thus GRANTS Plaintiff leave to proceed
in forma pauperis. (Doc. 3, sealed.)
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 indicates that he has contacted at least 12
attorneys but was unable to find representation. (Doc. 4.)
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 will,
however, focus its analysis on 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 ...