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Smith v. Christi

United States District Court, D. Kansas

October 18, 2017

GRETTA E. SMITH, Plaintiff,
v.
VIA CHRISTI, et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND MOTION FOR APPOINTMENT OF COUNSEL

          KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE.

         In conjunction with her federal court Complaint alleging racial discrimination and retaliation in her employment, Plaintiff Gretta E. Smith 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), and a Motion to Appoint Counsel (Doc. 4). Having reviewed Plaintiff's motions, as well as her financial affidavit and Complaint, the Court GRANTS Plaintiff's motion for IFP status (Doc. 3) but DENIES her request for counsel (Doc. 4).

         I. Motion to Proceed Without Prepayment of Fees.

         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 her supporting financial affidavit, Plaintiff indicates she is 50 years old and single with no dependents. (Doc. 3-1, sealed, at 1-2.) Plaintiff is currently unemployed and lists prior employment as a home health aide. (Id., at 3.) She lists a small amount of unemployment benefits, but no other government assistance or income. (Id., at 4-5.)

         Plaintiff indicates there is a home in her name, but she says her “common law boyfriend” kept the house because she could not afford it. (Id., at 3.) She currently lives with her daughter and is not paying rent or other monthly bills. (Id., at 5.) She states that her automobile was repossessed. (Id., at 4.) She lists no cash on hand or bank accounts. (Id., at 4.) As for whether she has filed for bankruptcy, Plaintiff indicates she is “currently in one.” (Id., at 6.)

         Considering all of the information contained in the financial affidavit, Plaintiff has established that her access to the Court would be significantly limited absent the ability to file this action without payment of fees and costs. The Court GRANTS Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) and directs that the case be filed without payment of a filing fee.

         II. Motion to Appoint Counsel.

         Plaintiff has also filed a motion requesting the appointment of counsel. (Doc. 4.) As an initial matter, the Court notes that 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 Fed.Appx. 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 Fed.Appx. 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 her to afford counsel. The second factor is Plaintiff's diligence in searching for counsel. Based on the information contained in the form motion, Plaintiff has been diligent, but unsuccessful, in her attempt to secure legal representation. (Doc. 4.) As for the next factor, the Court has no immediate concerns with the merits of Plaintiff's case for purposes of this motion. See McCarthy, 753 F.2d at 838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. The Court's analysis thus turns to the final factor, Plaintiff's capacity to prepare and present the case without the aid of counsel. Castner, 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 employee's allegations of race, religion, sex, national origin, and disability discrimination were “not complex”).

         The Court sees no basis to distinguish Plaintiff from the many other untrained individuals who represent themselves pro se on various types of claims in Courts throughout the United States on any given day. Although Plaintiff is not trained as an attorney, and while an attorney might present this case more effectively, this fact alone does not ...


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