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Allen v. Wichita State University

United States District Court, D. Kansas

January 3, 2019

ANTHONY L. ALLEN, Plaintiff,
v.
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

         In 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.

         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 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.)

         The 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.

         That 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.)

         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 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).

         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) 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.

         As 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 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. 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”).

         The 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 ...


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