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Lindsey v. T2 Partners, LLC

United States District Court, D. Kansas

March 8, 2019

BROOKE A. LINDSEY, Plaintiff,
v.
T2 PARTNERS, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          Teresa J. James, U.S. Magistrate Judge.

         Pro se Plaintiff Brooke A. Lindsey brings this case against Defendants T2 Partners, LLC; Westside Family Church; Title Boxing Club 10; Jeanie Alden; Joe Lieberman;[1] Lieberman Consulting, LLC; and JL Enterprises. This matter comes before the Court on several motions: Plaintiff's Motion to Proceed Without Prepayment of Fees (ECF No. 3), Plaintiff's Motion to Leave File Under Seal (sic) (ECF No. 4), Plaintiff's Motion to Seal Entire Case (ECF No. 5), Plaintiff's Motion for Leave File Under Seal (sic) (ECF No. 6), [2] and Plaintiff's Motion for Leave to File Documents Under Seal (ECF No. 7).[3] For the reasons discussed below, the Court grants Plaintiff's Motion to Proceed Without Prepayment of Fees but directs the U.S. Marshals Service to withhold service of summons and the complaint until further order of the Court; denies each of Plaintiff's motions to file documents under seal and to seal the case; and denies Plaintiff's request for appointment of counsel.

         I. Motion to Proceed Without Prepayment of Fees

         Under the in forma pauperis statute, 28 U.S.C. § 1915(a)(1), the court may authorize the commencement of a civil action “without the prepayment of fees or security therefor, by a person who submits an affidavit…[if] the person is unable to pay such fees or give security therefor.” To succeed on a motion to proceed in forma pauperis, the movant must show he or she is financially unable to pay the required filing fee.[4] The decision to grant or deny in forma pauperis status under section 1915 lies within the sound discretion of the trial court.[5]

         Based on the information provided in her financial affidavit, Plaintiff has shown a financial inability to pay the required filing fees. Plaintiff is not currently employed and her only income seems to be $100 biweekly from a source not identified in her financial affidavit. She reports no other income or assets, and says she has $100 in her checking account. The Court will therefore grant Plaintiff's Motion to Proceed Without Prepayment of Fees.

         Although Plaintiff is granted leave to proceed without prepayment of the filing fee, service of process may be withheld pending review under 28 U.S.C. § 1915(e)(2)(B).[6] While such review may occur at any time and the Court is not obligated to conduct the review before service of process, [7] dismissals “are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering.”[8] In this case, a pre-service review appears appropriate given that Plaintiff's Complaint appears to fail to state a claim on which relief may be granted. A separate Report and Recommendation will be entered recommending that Plaintiff's Complaint be dismissed.

         II. Motions for Leave to File Under Seal

         Plaintiff alleges harassment and retaliation, as well as other claims throughout her attached exhibits, against all defendants. Plaintiff requests leave to file all exhibits related to the case under seal.[9]

         After reviewing the exhibits provided by Plaintiff, the Court finds the exhibits should not be filed under seal. “It is well settled that federal courts recognize a common-law right of access to judicial records. This right derives from the public's interest in understanding disputes that are presented to a public forum for resolution and is intended to assure that the courts are fairly run and judges are honest.”[10] However, the public's right of access is not absolute. “Because federal district courts have supervisory control over their own records and files, the decision whether to allow access to those records is left to the court's sound discretion. In exercising that discretion, the court must consider the relevant facts and circumstances of the case and balance the public's right of access, which is presumed paramount, with the parties' interests in sealing the record or a portion thereof. Documents should be sealed only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.”[11]

         A party seeking to file documents under seal has the burden of showing disclosure of such documents “in the public record would result in public or private harm” that would outweigh the public's right of access to the records.[12] Plaintiff has not articulated or presented facts to meet her burden of showing public or private harm. Plaintiff's motions simply state the exhibits should be placed under seal to “protect personal documents” so that Plaintiff is not subjected to “perpetuated harassment & retaliation personally or professionally.”[13] Plaintiff does not explain how or by whom she is being harassed or retaliated. Many of the exhibits Plaintiff requests to file under seal include tax, medical, and divorce documents related to Plaintiff. She also attaches documents from a previous case in this Court in which she sued a former employer for discrimination, retaliation, and a hostile work environment.[14] Someone, presumably Plaintiff, has written notes on many of the documents, which are often hard to follow. It is unclear what if any relevance many of the proposed exhibits have on Plaintiff's claims, or why she would need to file them in this case. Plaintiff has failed to show that any privacy interest she may have in the documents outweighs the public's right to assess such documents.

         Plaintiff's Motion to Seal Entire Case (ECF No. 5) is a one-page document that again says she would like her “personal docs to be sealed so I don't have continued harassment, slander and retaliation to continue or perpetuate.” Plaintiff provides no information as to how she is being harassed or retaliated against, by whom, or how sealing the case would prevent any alleged harassment or retaliation.

         The motions for leave to file under seal will be denied without prejudice. Should Plaintiff be allowed to proceed with her case, she may review her proposed exhibits and, if warranted, file a new motion to file under seal detailing the relevance the documents have to her claims and what harm would result if they were disclosed.

         III. Motion for Appointment of Counsel

         Attached as an exhibit to one of Plaintiff's motions for leave to file under seal is a Motion for Appointment of Counsel and Declaration of Good Faith Efforts to Obtain Counsel (ECF No. 6-1). While a defendant in a criminal action has a constitutional right to be represented by an attorney, it is well settled that a party in a civil action has no right to appointment of counsel.[15]Instead, courts considering requests for the appointment of counsel in civil actions generally look to the in forma pauperis statute, 28 U.S.C. § 1915.[16] Under 28 U.S.C. § 1915(e)(1), a court “may request an attorney to represent any person unable to afford counsel.” The appointment of counsel under 28 U.S.C. § 1915(e)(1) is a matter within the discretion of the district court.[17] In determining whether to appoint counsel under ยง 1915(e)(1), the district court may consider a variety of factors, including: (1) the litigant's ...


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