United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. MITCHELL U.S. MAGISTRATE JUDGE.
matter comes before the court on plaintiff Melissa Dawn
Wilson's Motion to Proceed In Forma Pauperis (ECF No. 3)
and Motion to Appoint Counsel (ECF No. 4). After reviewing
Ms. Wilson's motions, the court grants her leave to
proceed in forma pauperis (“IFP”) and
denies her request for appointment of counsel, but without
prejudice to be renewed at a later procedural juncture.
Wilson, proceeding pro se, filed a complaint on April 2,
2019. In her complaint, she alleges that she was
discriminated against in violation of the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq.
Motion to Proceed IFP
Wilson asks the court to grant her IFP status. Title 28
U.S.C. § 1915 allows courts to authorize commencing a
civil action “without prepayment of fees or security
therefor, by a person who submits an affidavit that . . . the
person is unable to pay such fees or give security
therefor.” Proceeding in forma pauperis
“in a civil case is a privilege, not a
right-fundamental or otherwise.” White v.
Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). The
decision to grant or deny IFP status under § 1915 lies
within “the sound discretion of the district
court.” Engberg v. Wyoming, 265 F.3d 1109,
1122 (10th Cir. 2001). After carefully reviewing the
information Ms. Wilson provided in her financial affidavit,
the court waives the filing fee required for her to commence
this civil action. Ms. Wilson is granted leave to proceed
Motion to Appoint Counsel
Wilson also asks the court to appoint her counsel.
“There is no constitutional right to appointed counsel
in a civil case.” Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989) (per curiam). Pursuant to 28 U.S.C.
§ 1915(e)(1), however, a district court “has
discretion to request an attorney to represent a litigant who
is proceeding in forma pauperis.” Johnson v.
Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (per
curiam). The FHA also provides that a court may appoint an
attorney for a person alleging a discriminatory housing
practice. See 42 U.S.C. § 3613(b)(1). Neither
§ 1915(e)(1) nor the FHA confers a statutory right to
counsel. See Jackson v. Park Place Condos. Ass'n,
Inc., No. 13-2626-CM, 2014 WL 494789, at *1-*2 (D. Kan.
Feb. 6, 2014). The court is also mindful that neither
provides a method for compensating an attorney who takes on
the case. The pool of volunteer attorneys is limited, and
“[t]houghtful and prudent use of the appointment power
is necessary so that willing counsel may be located without
the need to make coercive appointments.” Castner v.
Colo. Springs Cablevision, 979 F.2d 1417, 1421 (10th
Cir. 1992). Indiscriminately appointing “volunteer
counsel to undeserving claims will waste a precious resource
and may discourage attorneys from donating their time.”
28 U.S.C. § 1915(e)(1)
1915(e)(1) grants the court “broad discretion” to
request that an attorney represent an indigent party.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). In exercising this discretion, the court considers the
following factors: (1) the merit of the party's claims;
(2) “the nature and complexity of the factual and legal
issues”; and (3) the party's “ability to
investigate the facts and present [the] claims.”
Hill v. SmithKline Beecham Corp., 393 F.3d 1111,
1115 (10th Cir. 2004). A party requesting counsel has the
burden “to convince the court that there is sufficient
merit to [the] claim to warrant the appointment of
counsel.” Id. The fact that counsel could
assist in presenting the “strongest possible
case” is not enough because “the same could be
said in any case.” Steffey v. Orman, 461 F.3d
1218, 1223 (10th Cir. 2006).
Merit of the Claims
first factor-the merits of Ms. Wilson's claims-weighs
against appointing counsel. Ms. Wilson makes no argument
regarding the merit of her claims, so the court can look only
to the complaint. Ms. Wilson's complaint alleges that she
was discriminated against by her apartment's management
after she brought an emotional support animal to live with
her. Ms. Wilson alleges that she made a complaint to the
Department of Housing and Urban Development
(“HUD”), which was dismissed. Administrative
findings in favor of a plaintiff are “highly
probative” as to the merits of that plaintiff's
claim. See Coleman v. Gen. Motors, No. 12-2305-CM,
2012 WL 13047580, at *2 (D. Kan. July 6, 2012). Ms. Wilson
has not provided any administrative findings from HUD that
were in her favor. Therefore, she has not carried her burden
to affirmatively establish the merit of her claims. See
id. (noting that “parties seeking appointment of
counsel generally cannot carry their burden to affirmatively
show meritorious claims of discrimination when they fail to
provide ‘highly probative' information for
Nature and Complexity of the Factual ...