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Palmer v. Pentair

United States District Court, D. Kansas

December 13, 2018

ANTHONY B. PALMER, Plaintiff,
v.
PENTAIR, et al., Defendants.

          ORDER DENYING APPOINTMENT OF COUNSEL

          TERESA J. JAMES, U.S. MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff's Motion for Appointment of Counsel (ECF No. 4). For the reasons set out below, the Court denies the motion.

         I. Relevant Factual Background

         Plaintiff pro se commenced this action on November 26, 2018 by filing a civil complaint. The Court granted him permission to proceed with this action in forma pauperis.

         II. Motion for Appointment of Counsel

         In general, there is no constitutional right to appointment of counsel in a civil case.[1]Plaintiff asserts in his complaint a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., but he has not provided an adequate basis to appoint counsel under that statute.

         For actions under Title VII, 42 U.S.C. § 2000e-5(f)(1) provides discretionary authority for appointing counsel “in such circumstances as the court may deem just.”[2] It provides no statutory right to counsel, only “a statutory right to request appointed counsel at court expense.”[3]The Court has “extremely broad” discretion to appoint counsel under § 2000e-5(f)(1).[4] For guidance the Tenth Circuit has identified factors that courts consider when evaluating a motion for appointment of counsel. Appointment of counsel is only appropriate under § 2000e-5(f)(1) after the plaintiff has affirmatively shown “(1) financial inability to pay for counsel; (2) diligence in attempting to secure counsel; and (3) meritorious allegations of discrimination.”[5] As “an aid in exercising discretion” in close cases, the Court should also consider whether the plaintiff has the “capacity to present the case without counsel.”[6]

         When considering appointment of counsel, the Court remains mindful that Congress has provided no mechanism for compensating appointed attorneys.[7] “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 precious resource and may discourage attorneys from donating their time.”[8] Finally, the Court notes that it has a limited pool of volunteer attorneys from whom it may appoint counsel.

         The factors considered under Title VII regarding appointment of counsel are similar to those considered when deciding to request an attorney to represent an indigent party under § 1915(e)(1). Consequently, a ruling on a motion under Title VII generally supports denying appointment under § 1915(e)(1) as well.

         A. Financial Ability to Secure Counsel

         Plaintiff has submitted a financial affidavit in this action. Based upon that affidavit, the Court has granted him permission to proceed in forma pauperis. The affidavit likewise shows that Plaintiff is financially unable to secure counsel. In the appointment-of-counsel context, the pertinent inquiry is whether the party seeking appointment can “meet his or her daily expenses” while also hiring an attorney.[9] Given the financial affidavit, Plaintiff has shown that he would be unable to meet his daily, non-discretionary expenses were he to hire an attorney.

         B. Efforts to Secure Counsel

         To obtain appointment of counsel, a party must make diligent efforts to secure counsel. This typically requires the party to meet with and discuss the case with at least five attorneys.[10] In his present motion, Plaintiff states he has contacted two attorneys, but has been unable to obtain their services. Based on that information, the Court finds that Plaintiff has made insufficient efforts to secure counsel.

         C. Merit ...


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