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Mosqueda v. City of Wichita Police Department

United States District Court, D. Kansas

May 11, 2018

MARIA MOSQUEDA, et al., Plaintiffs,
v.
CITY OF WICHITA POLICE DEPARTMENT, et al., Defendants.

          ORDER

          GWYNNE E. BIRZER United States Magistrate Judge

         This matter is before the Court on Plaintiffs' Motion to Proceed without Prepayment of Fees (ECF No. 3), Amended Affidavit of Financial Status (ECF No. 9), and the Amended Motion for Appointment of Counsel (ECF No. 10). On May 9, 2018, the Court held an in-person hearing to discuss all currently pending motions. Plaintiffs appeared in person. For the reasons outlined below, Plaintiffs' Motion to Proceed without Prepayment of Fees (ECF No. 3) is GRANTED and Amended Motion for Appointment of Counsel (ECF No. 10) is DENIED WITHOUT PREJUDICE.

         I. Motion to Proceed In Forma Pauperis (ECF No. 3)

         Under 28 U.S.C. § 1915(a), the Court has the discretion[1] to authorize the filing of a civil case “without prepayment of fees or security thereof, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security thereof.” “Proceeding in forma pauperis in a civil case ‘is a privilege, not a right-fundamental or otherwise.'”[2] When considering such an application, the court must neither act arbitrarily nor deny the application on erroneous grounds.[3] Generally, the court compares an applicant's monthly income to his or her monthly expenses to determine whether the applicant lacks the financial ability to pay.[4] The decision whether to grant or deny in forma pauperis status under § 1915 lies within the sound discretion of the court.[5]

         After a careful review of Plaintiffs' Amended Affidavit of Financial Status (ECF No. 9) and the comparison of their monthly income to their monthly expenses, the Court finds they are financially unable to pay the filing fee.[6]

         IT IS THEREFORE ORDERED that Plaintiffs' Motion to Proceed without Prepayment of Fees (ECF No. 3) is GRANTED. Because Plaintiffs proceed in forma pauperis, service of process would normally be promptly undertaken by the clerk of court under 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3). However, in light of this Court's order, being filed simultaneously with this order, requiring Plaintiffs to file an amended complaint (Order Directing Plaintiffs to File an Amended Complaint, ECF No. 15), the clerk is directed to stay service of process pending Plaintiffs' filing of an amended complaint and the Court's review of the amendment.[7]

         II. Amended Motion for Appointment of Counsel (ECF No. 10)

         In general, there is no constitutional right to appointment of counsel in a civil case.[8]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.”[9] 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 or her claims; (3) the litigant's financial ability to pay an attorney; and (4) the litigant's diligence in attempting to secure an attorney.[10] 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.[11]

         Thoughtful and prudent care in appointing representation is necessary so that willing counsel may be located.[12] The court has an obligation not to make indiscriminate appointments on every occasion that a plaintiff seeks court-ordered counsel, [13] particularly in light of the expanding federal court dockets, increased filings by pro se parties, and decreasing number of attorneys willing to accept appointments.[14]

         The Court is satisfied the third and fourth factors above have been meet. Plaintiffs' Amended Affidavit of Financial Status, discussed above, sufficiently shows the Court Plaintiffs cannot pay an attorney. And, Plaintiffs' Amended Motion for Appointment of Counsel adequately identifies five attorneys they consulted prior to filing this case. (ECF No. 10, at 2-3).

         The Court, however, is unable to evaluate the first two factors. The absence of facts in Plaintiffs' Complaint makes it impossible for the Court to determine the merits of Plaintiffs' claims and their ability to present those claims.[15] That said, the Court recognizes that “its perception of the merits and other factors relevant to the issue of appointment of counsel may vary”[16] as the case progresses. Although “a court may well appoint counsel at the outset of a case, it might also decide to postpone the decision-for example, until after resolution of dispositive motions-in order to give itself both more time and more information to evaluate the plaintiff's capabilities and the merits of the case.”[17] Postponing a decision to appoint counsel in this case will allow the Court to gain more information about both the merits of the claims and Plaintiffs ability to present their case.[18] Therefore, the Amended Motion for Appointment of Counsel shall be DENIED WITHOUT PREJUDICE to the filing of a similar motion at a later time.

         IT IS THEREFORE ORDERED that Plaintiffs' Amended Motion for Appointment of Counsel (ECF No. 10) is DENIED WITHOUT PREJUDICE.

         IT ...


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