United States District Court, D. Kansas
ORDER DENYING MOTION FOR APPOINTMENT OF
J. James U.S. Magistrate Judge.
commenced this action pro se on May 23, 2019 by
filing a Complaint (ECF No. 1) alleging employment
discrimination and retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.;
age discrimination under the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § 621 et
seq.; and employment discrimination under the Americans
with Disabilities Act of 1990, as amended, 42 U.S.C. §
12101, et seq. Plaintiff names the law firm of
McAnany, Van Cleave & Phillips, P.A., its chief operating
officer Phillip M. Sanders, and partner James P. Wolf as
Defendants. This matter comes before the Court on
Plaintiff's Motion for Appointment of Counsel (ECF No.
a criminal defendant, a plaintiff in a civil case has no
constitutional or statutory right to appointed
counsel. For parties proceeding in forma
pauperis, 28 U.S.C. § 1915(e)(1) provides
discretionary authority to “request an attorney to
represent any person unable to afford counsel.” The
provision, however, does not provide a statutory right to
counsel. In determining whether to appoint counsel
under 28 U.S.C. § 1915(e), the Tenth Circuit has
directed district courts to evaluate the following factors:
“the merits of the litigant's claims, the nature of
the factual issues raised in the claims, the litigant's
ability to present his claims, and the complexity of the
legal issues raised by the claims.” The burden is on
Plaintiff to convince the Court that her claim has sufficient
merit to warrant the appointment of counsel. In this instance,
the Court examines Plaintiff's complaint to determine
whether she satisfies her burden. Plaintiff's complaint
does not provide a sufficient basis for the Court to find
that this action warrants appointment of counsel.
on the Court's review of the documents Plaintiff has
filed to date, the Court finds that Plaintiff appears able to
adequately communicate to the court the pertinent facts
giving rise to her claims. Plaintiff appears to have used the
employment discrimination forms provided by this court to
assist her in preparing her Complaint, and she has
supplemented those with additional writings. Plaintiff also
filed a charge of discrimination with the Equal Employment
Opportunity Commission and the Kansas Human Rights Commission
in which she articulated her claims. Although this case
asserts claims against three Defendants, the same substantive
factual allegations apply to all three. Given the liberal
standards governing pro se litigants, if Plaintiff devotes
sufficient efforts to presenting her case, she can do so
adequately without the assistance of counsel. The Court finds
that Plaintiff has not met her burden for appointment of
counsel under 28 U.S.C. § 1915(e)(1).
district court also has discretion to appoint counsel for a
plaintiff who asserts claims under Title VII “in such
circumstances as the court may deem
just.” The Tenth Circuit has identified four
factors which are relevant when evaluating motions for the
appointment of counsel in Title VII cases. Before the Court
may appoint counsel, the “plaintiff must make
affirmative showings of (1) financial inability to pay for
counsel; (2) diligence in attempting to secure counsel; and
(3) meritorious allegations of
discrimination.” In addition, “plaintiff's
capacity to present the case without counsel should be
considered in close cases as an aid in exercising
discretion.” The discretion granted to the court in
appointing counsel is extremely broad.
Congress did not provide any mechanism for compensating
appointed counsel, however, Castner cautions the
“[t]houghtful and prudent use of the appointment power
. . . so that willing counsel may be located without the need
to make coercive appointments.”
Court has reviewed Plaintiff's Motion for Appointment of
Counsel under these standards. Based on the Court's
review of the motion, along with the Complaint, the Court
finds that Plaintiff has shown financial inability to pay for
counsel and diligence in attempting to secure counsel.
However, as Plaintiff acknowledges in her motion, the court
rarely grants motions for appointment of counsel.
the complaint and attachments thereto provide the only basis
upon which the court can assess the merits of Plaintiff s
claims, insufficient information exists to warrant the
appointment of counsel at this time. Finally, the Court
already has considered the fourth Castner factor,
i.e., Plaintiffs capacity to present the case without
counsel. The Court therefore declines to appoint counsel for
Plaintiff under 42 U.S.C. § 2000e-5(f)(1).
IS THEREFORE ORDERED that Plaintiffs Motion for
Appointment of Counsel (ECF No. 4) is DENIED.
 Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir.
 See, e.g., Leon v. Garmin
Int'l., No. 10-2495-JTM, 2010 WL 4174643, at *1 (D.
Kan. Oct. 20, 2010).
Hill v. SmithKline Beecham
393 F.3d 1111, 1115 (10th Cir. 2004) (citing
Rucks v. Boergermann, 57 F.3d 978, 979 ...