United States District Court, D. Kansas
MICHAEL T. COCHRAN, Plaintiff,
CITY OF WICHITA, KANSAS, et al., Defendants.
E. BIRZER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's second motion
for appointment of counsel. (ECF No. 14).
Plaintiff filed his first motion for appointment of counsel
on June 5, 2017. (ECF No. 4). The Court denied this motion
without prejudice because it was unable to consider both the
merits of Plaintiff's claims and his ability to present
those claims due to the convoluted and unwieldly nature of
the 153-page Complaint. (Order, pp. 3-5, ECF No. 6). In a
separate order, the Court directed Plaintiff to file a more
manageable amended complaint or face recommendation of
dismissal. (Order Directing Plaintiff to File an Amended
Complaint, ECF No. 7). On November 20, 2017, along with
filing his second motion for appointment of counsel,
Plaintiff filed an Amended Complaint (ECF No. 15). For the
reasons outlined below, Plaintiff's second motion for
appointment of counsel (ECF No. 14) is
DENIED without prejudice.
general, there is no constitutional right to appointment of
counsel in a civil case.However, for parties proceeding in
forma pauperis, 28 U.S.C. § 1915(e)(1) provides
discretionary authority to appoint “an attorney to
represent any person unable to afford
counsel.” When evaluating whether to appoint
counsel, the court considers multiple factors, such as (1)
the merits of the litigant's claims, including the nature
and complexity of those claims; (2) the litigant's
ability to present his claims; (3) the litigant's
financial ability to pay an attorney; and (4) the
litigant's diligence in attempting to secure an
attorney. The party seeking counsel under §
1915(e)(1) has the burden “to convince the court”
that asserted claims have sufficient merit to warrant the
appointment of counsel.
and prudent care in appointing representation is necessary so
that willing counsel may be located. The court has an obligation
not to make indiscriminate appointments on every occasion
that a plaintiff seeks court-ordered counsel,  particularly in
light of the expanding federal court dockets, increased
filings by pro se parties, and decreasing number of attorneys
willing to accept appointments.
careful consideration, the Court declines to appoint counsel
to represent Plaintiff. The third factor outlined above has
been satisfied as shown by the Court's previous order
allowing Plaintiff to proceed in this action without payment
of fees. (Order, ECF No. 6, pp. 1-3). The fourth factor has
also been satisfied as Plaintiff described his efforts to
locate counsel in an August 23, 2017 hearing before the
Court. (Order, ECF No. 6, p. 4).
Court, however, is still unable to consider the first two
factors. While Plaintiff did file an Amended Complaint (ECF
No. 15), it spans 277 pages when including exhibits and is no
more clear or manageable than his original Complaint. The
Court is therefore unequipped to consider the merits, nature
and complexity of Plaintiff's claims and his ability to
present those claims based on the Amended Complaint. In fact,
the Court is simultaneously filing a Report and
Recommendation suggesting dismissal of the Amended Complaint
without prejudice due to Plaintiff's failure to comply
with the “short and plain statement” requirements
of Fed.R.Civ.P. 8. For these reasons, the motion for
appointment of counsel shall be denied without
IS THEREFORE ORDERED that Plaintiff's Motion for
Appointment of Counsel (ECF No. 24) is
DENIED without prejudice.
IS SO ORDERED.
Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989).
Johnson v. Johnson, 466 F.3d
1213, 1217 (10th Cir. 2006) (a district “court has
discretion to request an attorney to represent a litigant who
is proceeding in forma pauperis” under 28 U.S.C. §
See Rucks v. Boergermann, 57
F.3d 978, 979 (10th Cir. 1995); Castner v. Colorado
Springs Cablevision, 979 F.2d 1417, 1420-21 (10th Cir.
Jones v. Maritz Research Co.,
No. CIV.A. 14-2467-SAC, 2014 WL 6632929, at *1 (D. Kan. Nov.
21, 2014) (citing Hill v. SmithKline Beecham Corp.,