United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES, MOTION TO APPOINT COUNSEL, AND REPORT
& RECOMMENDATION FOR DISMISSAL
KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE.
conjunction with her federal court Complaint (Doc. 1),
Plaintiff Crystal Nicole Jones has also filed an Application
to Proceed Without Prepaying Fees or Costs (“IFP
application, ” Doc. 3, sealed) with a supporting
financial affidavit (Doc. 3-1). Plaintiff also filed a Motion
to Appoint Counsel. (Doc. 4.) After review of Plaintiff's
motions, as well as the Complaint, the Court
GRANTS the IFP application (Doc. 3),
DENIES her request for counsel (Doc. 4), and
recommends Plaintiff's claims be
dismissed for failure to state a viable
federal cause of action.
Motion to Proceed IFP.
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). “Proceeding in forma pauperis in a civil case
‘is a privilege, not a right - fundamental or
otherwise.'” Barnett v. Northwest School,
No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26, 2000)
(quoting White v. Colorado, 157 F.3d 1226, 1233
(10th Cir. 1998)). The decision to grant or deny in forma
pauperis status lies within the sound discretion of the
court. Cabrera v. Horgas, No. 98-4231, 1999 WL
241783, at *1 (10th Cir. Apr. 23, 1999).
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 38
and separated. (Doc. 3, sealed, at 1.) She lists one
dependent, but lists the dependent's age as 18.
(Id., at 2.) Plaintiff does not include an
explanation as to why this individual, who is legally an
adult, should be considered a dependent (such as mental or
physical impairment). As such, the Court will not consider
this in determining Plaintiff's IFP status.
is currently employed with a home health care company as a
“non-medical assistant, ” earning a modest wage.
(Id.) Plaintiff owns real property, in which there
is a small amount of equity. (Id., at 3.) She also
owns a modest automobile. (Id., at 4.) She lists no
cash on hand. (Id.) Plaintiff lists typical monthly
expenses, including rent, groceries, utilities, and
automobile insurance. (Id., at 5.) She also lists an
outstanding debt to Kansas Gas, with a significant monthly
the information contained in her financial affidavit, the
Court finds that 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 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.) 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 A., supra, 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 concerns regarding the viability of Plaintiff's
claims in federal court, as discussed in Section C.,
infra. 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
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 ...