United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge
matter is before the Court on the Motion for Appointment of
Counsel (ECF No. 43) filed by pro se Defendant
Royall Jenkins, who requests that the Court appoint a lawyer
to represent him in this case. He states he has made efforts
to find a lawyer to represent him, but has been unable to
obtain their services. He has attached an affidavit in
support of his request for appointment of counsel.
defendant in a criminal action has a constitutional right to
be represented by an attorney, it is well settled that a
civil litigant, either plaintiff or defendant, has no right
to appointment of counsel. Under the in forma pauperis
statute, 28 U.S.C. § 1915(e)(1), a court “may
request an attorney to represent any person unable
to afford counsel.” The Tenth Circuit has set forth several
factors the district court may consider in determining
whether to appoint counsel under the in forma
pauperis statute. Those factors are: (1) the merits of
the litigant's claims, (2) the nature of the factual
issues raised in the claims, (3) the litigant's ability
to present his/her claims, and (4) the complexity of the
legal issues raised by the claims. Although the first factor
may appear more applicable to civil plaintiffs, the rest of
the factors can be applied to a defendant's request for
appointment of counsel. This is consistent with other cases
that have considered whether to appoint counsel for a civil
defendant under 28 U.S.C. § 1915(e)(1). In Parker v.
Parker, the court considered the defendant's ability
to comprehend, investigate, and present his case, the
complexity of relevant legal issues, and the defendant's
ability to retain his own counsel. In another case, Waller
v. Butkovich,  the court considered a request for
appointment of counsel by a group of pro se
defendants. The court looked to the capacity of the
defendants to present their defense, and the nature and
complexity of the factual issues raised in the case. The
court in Thompson v. Lopatriello noted that the
traditional factors used in deciding whether to appoint
counsel under 28 U.S.C. § 1915(e)(1) were not as
meaningful when applied to civil defendants. It instead
examined the ability of the defendant to present a defense.
In all of these civil cases, the court denied the request of
the pro se defendant for the appointment of counsel.
Appointment of counsel for a civil defendant under 28 U.S.C.
§ 1915(e)(1) thus appears to be rare.
upon a review of the Affidavit of Financial Status Defendant
Jenkins submitted with his motion, the Court finds he has
made a threshold showing that he cannot afford to pay for
counsel. This, however, does not automatically entitle him to
the appointment of counsel.Once the Court finds that the
requesting party cannot afford counsel, it then considers
whether other circumstances warrant the appointment of
counsel. In this civil case the requesting party is a
defendant. The Court will consider his ability to comprehend,
investigate, and present his defense, as well as the nature
and complexity of the factual and legal issues raised in the
also attached an affidavit to his motion signed by Ephraim
Woods, Jr., which contains a request that if the Court does
not appoint counsel for Defendant Jenkins, Mr. Woods be given
“permission to administrate all future proceedings (if
deemed necessary) Pro Se.” The statute does not
contemplate and the law does not otherwise allow appointment
of anyone who is not a lawyer to represent another person.
the motion under these factors, the Court finds that the
request for counsel should be denied. The Court finds no
factual basis, either from the motion itself or otherwise, to
support a finding that Defendant Jenkins lacks sufficient
ability to comprehend, investigate, and present his own
THEREFORE ORDERED that Defendant Jenkins' Motion for
Appointment of Counsel (ECF No. 43) is denied.
 Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir.
 28 U.S.C. § 1915(e)(1) (emphasis
 Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citing
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
See Parker v. Parker, No.
4:07-CV-00074, 2008 WL 697416, at *2 (E.D. Mo. Mar. 13, 2008)
(“[P]ursuant to 28 U.S.C. § 1915(d) (2000), a
court has broad discretion to appoint counsel to represent an
indigent defendant, and may consider several factors in that
vein, i.e. the party's ability to comprehend,
investigate, and present his case; the complexity of ...