United States District Court, D. Kansas
ORDER DENYING MOTION FOR APPOINTMENT OF
J. James U.S. Magistrate Judge.
commenced this action pro se on October 11, 2019 by
filing a Complaint (ECF No. 1) alleging employment
discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., naming
Jet.com/Walmart as Defendant. This matter comes before the
Court on Plaintiff's Motion for Appointment of Counsel
(ECF No. 4).
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 his claim has sufficient
merit to warrant the appointment of counsel. In this instance,
the Court examines Plaintiff's complaint to determine
whether he satisfies his 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 his claims. Plaintiff appears to have used the
employment discrimination forms provided by this Court to
assist him in preparing his Complaint, and he has
supplemented those with additional writings. This case
asserts claims against a single defendant. Given the liberal
standards governing pro se litigants, if Plaintiff devotes
sufficient efforts to presenting his case, he can do so
adequately without the assistance of counsel. The Court finds
that Plaintiff has not met his 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.”Indiscriminate
appointment of volunteer counsel to undeserving claims wastes
precious resources and may discourage attorneys from
providing pro bono services.
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 and other
pleadings filed in the case, the Court finds that Plaintiff
has shown financial inability to pay for counsel and
diligence in attempting to secure counsel. However, Plaintiff
does not show he has made any attempt to obtain 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. Smith Kline Beecham
393 F.3d 1111, 1115 (10th Cir. 2004) (citing
Rucks v. Boergermann, 57 F.3d 978, 979 ...