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Dover v. St. Francis Community Serv.

United States District Court, D. Kansas

December 4, 2018

VERONICA DOVER, Plaintiff,
v.
ST. FRANCIS COMMUNITY SERV., et al., Defendants.

          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

         In 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.

         A. Motion to Proceed IFP.

         Under 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).

         There 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").

         In the 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.)

         Considering 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.)

         B. Motion to Appoint Counsel.

         Plaintiff 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 omitted).

         The 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.

         As 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.)

         The 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 complex").

         Plaintiff 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.

         C. Sufficiency of Complaint and ...


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