United States District Court, D. Kansas
JIMMY M. GARDENHIRE, Plaintiff,
SOLOMON CORPORATION, Defendant.
E. BIRZER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Jimmy M.
Gardenhire's for Appointment of Counsel (ECF No.
3) and his Amended Motion for Appointment of Counsel
(ECF No. 10). For the reasons set forth
below, Plaintiff's Motions are DENIED.
parties like Plaintiff who proceed in forma
pauperis, 28 U.S.C. § 1915(e)(1) provides
discretionary authority to “request an attorney to
represent any person unable to afford
counsel.” Because Plaintiff's claims are based
on employment discrimination, the federal employment
discrimination statutes also provide the court discretionary
authority to appoint counsel “in such circumstances as
the court may deem just.” But there is no constitutional
right to counsel in a civil action.
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) a plaintiff's financial
inability to pay for counsel; (2) a plaintiff's diligence
in attempting to secure counsel; (3) the existence or
nonexistence of meritorious allegations of discrimination;
and (4) a plaintiff's capacity to present the case
without counsel. Thoughtful 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
approving Plaintiff's request to proceed in forma
pauperis, the Court accepts the veracity of his
affidavit of poverty and inability to afford legal counsel.
And, although Plaintiff's initial Motion (ECF No. 3) was
deficient, the Court accepts Plaintiff's statement in his
Amended Motion (ECF No. 10) that he has conferred with at
least five attorneys who have declined this case for various
reasons, and finds he has diligently searched for counsel on
his own, prior to seeking appointment. Therefore, he
satisfies both the first and second prongs of the
Plaintiff's satisfaction of the financial and diligence
factors of the analysis, the Court is unable to fully
evaluate the merits of Plaintiff's claims given the
information presented in his Complaint. Moreover, the Court
has some present concerns regarding the timeliness of his
Complaint, which the Court prefers to be determined prior to
seeking appointed counsel. Additionally, at this stage, Plaintiff
has not demonstrated any reason why he is unable to
adequately present the case on his own. His Complaint is
understandable and adequately describes his claim.
Court recognizes that “its perception of the merits and
other factors relevant to the issue of appointment of counsel
may vary” as the case progresses. Postponing a
decision to appoint counsel allows the Court to gain more
information about both the merits of Plaintiff's claims
and his ability to present this case to the
Court. Although “a court may well appoint
counsel at the outset of a case, it might also decide to
postpone the decision-for example, until after resolution of
dispositive motions-in order to give itself both more time
and more information to evaluate the plaintiff's
capabilities and the merits of the case.” Under the
circumstances, the factors weigh against seeking an attorney
to represent Plaintiff at this time. Therefore, the motions
for appointment of counsel shall be DENIED
without prejudice to Plaintiff filing a similar motion at a
IS THEREFORE ORDERED that Plaintiff's Motion for
Appointment of Counsel (ECF No. 3) and
Amended Motion for Appointment of Counsel (ECF No.
10) are DENIED without prejudice.
IS SO ORDERED.
 28 U.S.C. § 1915(e)(1);
Jackson v. Park Place Condominiums Ass'n, Inc.,
No. 13-2626-CM-GLR, 2014 WL 494789, at *1 (D. Kan. Feb. 6,
 Jackson, 2014 WL 494789, at
*2 (citing 42 U.S.C. § 2000e-5(f)(1)).
See Sandle v. Principi, 201
Fed.Appx. 579, 582 (10th Cir. 2006) (citing Castner v.
Colo. Springs Cablevision,979 F.2d 1417, 1420 (10th
Cir. 1992) (Title VII case); Durre v. Dempsey, 869