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 renewed Motion to Appoint Counsel (ECF No. 9).
After reviewing Ms. Wilson's renewed motion, the court
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, along with a motion for leave to proceed in forma
pauperis (“IFP”) and a motion to appoint
counsel. On April 19, 2019, the court granted Ms. Wilson
leave to proceed IFP but denied her request to appoint
counsel without prejudice. (See Mem. & Order
(ECF No. 5).) Ms. Wilson filed an amended complaint on May 2,
2019. In her amended complaint, she alleges that she was
discriminated against in violation of the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq.;
Section 504 of the Rehabilitation Act of 1973
(“RA”), 29 U.S.C. § 794; and the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq. Ms. Wilson now renews her request for
appointment of counsel.
court will apply the same standards it applied when analyzing
Ms. Wilson's first motion for appointment of counsel. As
the court previously noted, “[t]here 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-continues
to weigh against appointing counsel. In Ms. Wilson's
renewed motion, she again makes no argument regarding the
merit of her claims, so the court can look only to the
amended complaint. Ms. Wilson alleges in her amended
complaint that defendants discriminated against her in
connection with her bringing an emotional support animal, a
rottweiler, to live in her apartment. Ms. Wilson also 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”).
Nature and Complexity of the Factual and Legal
second factor is the nature and complexity of the factual and
legal issues in the case. Ms. Wilson's claims relate to
alleged housing discrimination. Although Ms. Wilson added
some additional factual detail to her amended complaint, the
factual and legal issues still do not appear to be complex.
This factor continues to weigh against appointing counsel.
Ability to Investigate Facts and Present Claims
third and final factor is Ms. Wilson's ability to
investigate the facts and present her claims. Here, Ms.
Wilson's amended complaint demonstrates that she has
already conducted at least some investigation, and she has
previously presented her claims to HUD. There is no
indication that she could not continue her investigation and
adequately present her claims to the court. Because none of
the § 1915(e)(1) factors weigh in ...