United States District Court, D. Kansas
JAMAAL M. DORCH, Plaintiff,
v.
MAGNA AUTOMOTIVE SYSTEMS, Defendant.
ORDER
James
P. O'Hara U.S. Magistrate Judge
The pro
se plaintiff, Jamaal M. Dorch, filed this employment
discrimination action under 42 U.S.C. § 2000(e), against
his former employer, Magna Automotive Systems.[1]Plaintiff has
filed a motion seeking to commence and proceed with this case
without prepayment of fees pursuant to 28 U.S.C. § 1915
(ECF No. 3), in addition to a motion for appointment of
counsel (ECF No. 4). For the reasons discussed below, the
court requires supplementation of the documents for the
motion to proceed without prepayment. The court denies
plaintiff's motion for appointment of counsel. Further,
under the screening requirement of' 1915, by
August 26, 2019, plaintiff must show cause
in writing to the presiding U.S. District Judge, Carlos
Murguia, why this case should not be dismissed, with
prejudice, for lack of jurisdiction.
Motion
to Proceed In Forma Pauperis
Section
1915 of Title 28 of the United States Code allows the court
to authorize the commencement of 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.”
However, “[p]roceeding in forma pauperis in a civil
case is a privilege, not a right-fundamental or
otherwise.”[2] In considering a request to proceed in
forma pauperis, the court will compare an applicant's
monthly income and cash on hand to his monthly expenses and
financial obligations.[3] The decision to grant or deny in forma
pauperis status under' 1915 lies within the sound
discretion of the trial court.[4]
Plaintiff's
application is insufficient. While plaintiff provides his
personal data and his monthly expenses, he fails to include
any employment information or monthly income. Because
plaintiff has filed an employment discrimination action, it
stands to reason there is at least one employer that should
be listed in his financial affidavit. Additionally, plaintiff
has listed monthly expenses exceeding $3, 800, yet he asserts
he has no cash on hand and has not provided any sources of
income in the affidavit. Based on this incomplete
information, the court is unable to make an informed decision
about whether the waiver of court fees and costs is
justified. Plaintiff is therefore ordered to file a
supplemental application by August 26, 2019.
The supplemental application should provide all requested
information, specifically the requested employment
information and how plaintiff pays his monthly expenses.
Following receipt of the supplemental application, the court
will consider plaintiff's IFP application.
Appointment
of Counsel
In
civil actions such as this one, there is no constitutional
right to appointed counsel.[5]However, “under 28 U.S.C.
§ 1915(e)(1), a district court has discretion to request
counsel to represent an indigent party in a civil
case.”[6] The decision to appoint counsel lies
solely in the court's discretion, which should be based
on a determination that the circumstances are such that a
denial of counsel would be fundamentally
unfair.[7] “In determining whether to appoint
counsel, the district court should consider a variety of
factors, including 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.”[8] The court also considers the efforts made
by the litigant to retain his own counsel.[9]
The
court does not find it appropriate to appoint counsel for
plaintiff. While it appears from plaintiff's motion that
he has been diligent in his efforts to find an attorney to
represent him, other factors weigh against appointing
counsel. A review of the papers prepared and filed by
plaintiff indicates he is capable of presenting his case
without the aid of counsel, particularly given the liberal
standards governing pro se litigants. The factual and legal
issues in the case are not extraordinarily complex. Plaintiff
alleges his employer retaliated against him by falsifying a
drug test violation. The court has no doubt that the district
court judge who is assigned to this case will have little
trouble discerning the applicable law. It does not appear
that this case presents any atypical or complex legal issues.
Finally, based on the limited factual allegations and claims
presented in the complaint, the court is unable to determine
whether plaintiff's claims are particularly meritorious.
In the
end, the court concludes that this is not a case in which
justice requires the appointment of counsel. If plaintiff
devotes sufficient efforts to presenting his case, the court
is certain he can do so adequately without the aid of
counsel. Plaintiff's request for appointment of counsel
is therefore denied.
Screening
Under 28 U.S.C. § 1915(e)(2)
When a
party is granted leave to proceed in forma pauperis,
§ 1915(e)(2) requires the court to screen the
party's complaint. Section 1915(e)(2) requires a court to
dismiss a case in which in forma pauperis status has been
granted if at any time the court determines the action
“(i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such
relief.” Although' 1915 contains no express
authorization to do so, a district court may dismiss
under' 1915 for lack of personal jurisdiction and for
improper venue, even though such defenses can be waived under
Fed.R.Civ.P. 12(h)(1) if not properly raised.[10] A court may
only consider personal jurisdiction and venue sua sponte, or
on the court's own motion, “when the defense is
obvious from the face of the complaint and no further factual
record is required to be developed.”[11] “[T]he
district court may dismiss under' 1915 only if ‘it
is clear that the plaintiff can allege no set of facts'
to support personal jurisdiction or
venue.”[12]
A court
must have personal jurisdiction over all defendants in order
to hear and decide a case. Under the Due Process Clause, the
court has personal jurisdiction over a nonresident defendant
so long as the defendant purposefully established
“minimum contacts” with the forum
state.[13] The court looks at whether a defendant
has either “purposefully directed his activities at
residents of the forum, and the litigation results from
alleged injuries that arise out of or relate to those
activities.”[14] Alternatively, the court may have
jurisdiction “if the defendant's contacts with the
forum state, while unrelated to the alleged activities upon
which the claims are based, are nonetheless ‘continuous
and systematic.'”[15]
Plaintiff
alleges that the court has federal question jurisdiction in
this case. But it does not appear from the complaint that
defendant is a resident of Kansas or that defendant took any
action in Kansas, related to plaintiff's claimed injuries
or otherwise. Plaintiff appears to be a resident of Missouri,
the address associated with defendant is in Missouri, and the
allegations in plaintiff's complaint appear to have
occurred in Missouri. Based on the factual record, this court
may not have jurisdiction to hear this case. Plaintiff shall
therefore show cause why this case should not be dismissed
for lack of personal jurisdiction.
Plaintiff
is hereby informed that, within 14 days after he is served
with a copy of this order, he may, pursuant to Fed.R.Civ.P.
72 and D. Kan. Rule 72.1.4(a), file written objections to
this order by filing a motion requesting that the presiding
U.S. district judge review this order. A party must file any
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