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Wilson v. Housing Authority of Silver Lake

United States District Court, D. Kansas

April 19, 2019

MELISSA DAWN WILSON, Plaintiff,
v.
HOUSING AUTHORITY OF SILVER LAKE, KANSAS et al., Defendants.

          MEMORANDUM AND ORDER

          ANGEL D. MITCHELL U.S. MAGISTRATE JUDGE.

         This 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.

         I. BACKGROUND

         Ms. 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.

         II. DISCUSSION

         A. Motion to Proceed IFP

         Ms. 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 IFP.

         B. Motion to Appoint Counsel

         Ms. 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.” Id.

         1. 28 U.S.C. § 1915(e)(1)

         Section 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).

         a. Merit of the Claims

         The 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 consideration”).

         b. Nature and Complexity of the Factual ...


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