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Wilson v. Housing Authority of Silver Lake

United States District Court, D. Kansas

May 23, 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 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.

         I. BACKGROUND

         Ms. 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.

         II. DISCUSSION

         The 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.[1] 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-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”).

         b. Nature and Complexity of the Factual and Legal Issues

         The 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.

         c. Ability to Investigate Facts and Present Claims

         The 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 ...


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