United States District Court, D. Kansas
E. BIRZER United States Magistrate Judge
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
Motion to Proceed In Forma Pauperis (ECF No.
28 U.S.C. § 1915(a), the Court has the
discretion 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.'” When considering such an application, the
court must neither act arbitrarily nor deny the application
on erroneous grounds. 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. The decision whether to grant or deny
in forma pauperis status under § 1915 lies
within the sound discretion of the court.
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
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
Amended Motion for Appointment of Counsel (ECF No.
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 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. 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.
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).
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. That said, the Court recognizes that
“its perception of the merits and other factors
relevant to the issue of appointment of counsel may
vary” 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.” 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. Therefore, the Amended Motion for
Appointment of Counsel shall be DENIED WITHOUT
PREJUDICE to the filing of a similar motion at a
IS THEREFORE ORDERED that Plaintiffs' Amended
Motion for Appointment of Counsel (ECF No.
10) is DENIED WITHOUT PREJUDICE.