Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Roudybush v. Mitchell

United States District Court, D. Kansas

August 3, 2017

JOHN ROUDYBUSH, Plaintiff,
v.
ELLEN MITCHELL, ET AL., Defendants.

          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.

         In 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 entirety.

         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 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.)

         Plaintiff 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.)

         Considering 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.)

         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 indicates that he has contacted at least 12 attorneys but was unable to find representation. (Doc. 4.)

         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 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.

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.