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 Veronica Dover 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 Plaintiffs
motions, as well as the Complaint, the Court GRANTS
the IFP application (Doc. 3), DENIES her request for
counsel (Doc. 4), and recommends Plaintiffs
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 46
and single. (Doc. 3-1, sealed, at 1.) She lists her
16-year-old daughter as a dependent. (Id., at 2.)
Plaintiff is currently unemployed and receiving a modest
amount of Social Security Disability payments each month as
her only source of income. (Id., at 2, 4.) Plaintiff
does not own real property. (Id., at 3.) She does
own a modest automobile, with a small amount of residual
value. (Id., at 4.) She lists no cash on hand.
(Id.) Plaintiff lists typical monthly expenses,
including rent, groceries, gas, utilities, and automobile
insurance. (Id., at 5.) She also lists a very large,
outstanding medical debt, with a significant monthly payment.
(Id.) She has never filed for bankruptcy.
(Id., at 6.)
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 Common 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
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) plaintiffs diligence in searching for counsel, (3) the
merits of plaintiffs case, and (4) plaintiffs 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, Plaintiffs financial
situation would make it impossible for her to afford counsel.
The second factor is Plaintiffs 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.)
Court next addresses the final Castner factor,
Plaintiffs capacity to prepare and present the case without
the aid of counsel. 979 F.2d at 1420-21. In 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. Kayhillv. 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
does, however, indicate that her disability "includes a
communication disorder," meaning she is "simply
unable to communicate effectively what has happened."
(Doc. 4, at 3-4.) That stated, Plaintiff's Complaint
contains an abundance of factual information and citations to
various state and federal statutes and regulations. The Court
acknowledges that Plaintiff is not trained as an attorney and
that an attorney might present this case more effectively.
This fact alone does not warrant appointment of counsel,
particularly given the concerns the Court has 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. As such, Plaintiffs Motion to Appoint Counsel (Doc.
4, sealed) is DENIED.
Sufficiency of Complaint and ...