United States District Court, D. Kansas
E. BIRZER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Kendra Tyree's
Motion to Proceed without Prepayment of Fes (ECF No. 3) and
her Motion to Appoint Counsel (ECF No. 4). For the reasons
set forth below, Plaintiff's Motion to proceed in
forma pauperis (ECF No. 3) is
GRANTED, and Plaintiff's Motion for
Appointment of Counsel (ECF No. 4) is
Motion to Proceed Without Payment of Fees (ECF No.
28 U.S.C. § 1915(a), the Court has the
discretion to authorize the filing of a civil case
“without prepayment of fees or security thereof, by a
person who submits an affidavit that . . . the person is
unable to pay such fees or give security thereof.”
“Proceeding in forma pauperis in a civil case
‘is a privilege, not a right-fundamental or
otherwise.'” To determine whether a party is eligible
to file without prepayment of the fee, the Court commonly
reviews the party's financial affidavit and compares his
or her monthly expenses with the monthly income disclosed
the Tenth Circuit Court of Appeals and this Court have a
liberal policy toward permitting proceedings in forma
pauperis. After careful review of Plaintiff's
affidavit of financial resources (ECF No. 3-1,
sealed), and the comparison of her monthly income to
her monthly expenses, the Court finds she is financially
unable to pay the filing fee.
IS THEREFORE ORDERED that Plaintiff's Motion to
Proceed without Prepayment of Fees (ECF No.
3) is GRANTED. Although service of
process would normally be undertaken by the clerk of court
under 28 U.S.C. 1915(d) and Fed.R.Civ.P. 4(c)(3), the clerk
is directed to stay service of process pending the District
Court's review of the Report and Recommendation filed
simultaneously herein (ECF No. 6).
Motion for Appointment of Counsel (ECF No. 4)
who are permitted to proceed in forma pauperis are
subject to 28 U.S.C. § 1915(e)(1), which provides
discretionary authority for the court to “request an
attorney to represent any person unable to afford
counsel.” But there is no constitutional right to
counsel in a civil action. In its broad discretion, the Court
evaluates multiple factors when deciding whether to request
an attorney for an indigent party. In Castner v. Colorado
Springs Cablevision,  the Tenth Circuit identified four
factors which are relevant to the district court's
decision whether to appoint counsel: (1) the plaintiff's
ability to afford counsel, (2) the plaintiff's diligence
in searching for counsel, (3) the merits of the
plaintiff's case, and (4) the plaintiff's capacity to
prepare and present the case without the aid of counsel.
Additionally, as in all federal cases, the law requires the
plaintiff to state a viable claim for relief and the court
must have subject matter jurisdiction over that claim.
and prudent care in appointing representation is necessary so
willing counsel may be located,  but consideration of the
Court's growing docket, the increase in pro se filings,
and the limited number of attorneys willing to accept
appointment is also paramount.
careful consideration, the Court declines to appoint counsel
to represent Plaintiff. Plaintiff has satisfied the first
prong of the Castner analysis-her inability to
afford counsel-through the financial affidavits provided with
her motions to proceed in forma pauperis (ECF No.
3-1, sealed). Additionally, she fulfilled the second
prong of the analysis-diligence in searching for counsel-by
producing the names of more than five attorneys whom she
contacted about the case, along with a detailed description
of her efforts to obtain representation. (ECF No. 4 at 2-3.)
However, despite meeting these requirements, the Court finds
she cannot meet the third prong of analysis, as the Court has
serious concerns regarding its ability to adjudicate
Plaintiff's claims. Simultaneously with this order, the
Court recommends this case be dismissed due to a lack of
federal subject matter jurisdiction under Fed.R.Civ.P.
12(h)(3) and failure to state a plausible claim for relief
under 28 U.S.C. § 1915(e)(2)(B)(ii). (ECF No. 6.) Under
the circumstances, the request for appointment of counsel
shall be denied.
IS THEREFORE ORDERED that Plaintiff's Motion for
Appointment of Counsel (ECF No. 4) is
IS SO ORDERED.