United States District Court, D. Kansas
ANTHONY L. ALLEN, Plaintiff,
WICHITA STATE UNIVERSITY, et al., Defendant.
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 his federal court Complaint (Doc. 1),
Plaintiff Anthony L. Allen 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
Plaintiff’s motions, as well as the Complaint, the
Court GRANTS the IFP application (Doc. 3),
DENIES his request for counsel (Doc. 4), and
recommends Plaintiff’s 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 he is 51
years old and single with no listed dependents. (Doc. 3,
sealed, at 1-2.) Plaintiff is currently unemployed and lists
no prior employment. (Id., at 2-3.) Plaintiff owns
no real property and does not own an automobile.
(Id., at 3-4.) He lists no cash on hand and does not
indicate that he receives government benefits. (Id.,
at 4.) Plaintiff lists no monthly expenses or other debts.
(Id., at 5.)
Court has concerns about the lack of information contained in
Plaintiff’s financial affidavit. Plaintiff lists no
income, government benefits, or monetary gifts. He lists no
employment, past or present. Plaintiff does not provide
information regarding the most basic living expenses. For
instance, based on the information provided, the Court has no
indication as to how Plaintiff is even able to feed himself
over the course of a month.
stated, given the recommendation of dismissal to the District
Court, infra, the Court sees no benefit to require
Plaintiff to provide additional financial information. The
Court finds that, based on the information provided,
Plaintiff’s access to the Court would be significantly
limited absent the ability to file this action without
payment of fees and costs. As such, the Court
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 Comm’n v. Brockbank, 316 F.
App’x 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 F.
App’x 878, n.9 (10th Cir. 2010) (citation omitted).
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) plaintiff’s diligence in searching for counsel, (3)
the merits of plaintiff’s case, and (4)
plaintiff’s 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, based on the
information provided to the Court, Plaintiff’s
financial situation would make it impossible for him to
afford counsel. The second factor is Plaintiff’s
diligence in searching for counsel. Based on the information
contained in the form motion, Plaintiff has been diligent,
but unsuccessful, in attempting to secure legal
representation. (Doc. 4.) As for the next factor, the Court
has concerns 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. The
Court’s analysis thus turns to the final factor,
Plaintiff’s capacity to prepare and present the case
without the aid of counsel. Castner, 979 F.2d at
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. Kayhill v.
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”).
Court sees no basis to distinguish Plaintiff from the many
other untrained individuals who represent themselves pro
se on various types of claims in Courts throughout the
United States on any given day. Although Plaintiff is not
trained as an attorney, and while an attorney might present
this case more effectively, this fact alone does not ...