United States District Court, D. Kansas
GRETTA E. SMITH, Plaintiff,
VIA CHRISTI, et al., Defendants.
MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES AND MOTION FOR APPOINTMENT OF
KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE.
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).
Motion to Proceed Without Prepayment of Fees.
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 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.)
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.)
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.
Motion to Appoint Counsel.
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).
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 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.
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”).
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 ...