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Thomas Cole v. Precision Aviation Controls

United States District Court, D. Kansas

November 13, 2019

URSULA S. THOMAS COLE, Plaintiff,
v.
PRECISION AVIATION CONTROLS, et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND MOTION TO APPOINT COUNSEL

          KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE.

         In conjunction with her federal court Complaint (Doc. 1) alleging race, sex, and age discrimination as well as retaliation, Plaintiff Ursula S. Thomas Cole has filed a Motion to Proceed In Forma Pauperis (“IFP application, ” Doc. 3, sealed) with a supporting financial affidavit (Doc. 3-1). Plaintiff also filed a Motion to Appoint Counsel. (Doc. 4.) After review of Plaintiff's motions, as well as her Complaint and attachments thereto, the Court GRANTS the IFP application (Doc. 3) and DENIES Plaintiff's request for counsel (Doc. 4).

         A. Motion to Proceed IFP.

         Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of an action without prepayment of fees, costs, etc., by a person who lacks financial means. 28 U.S.C. § 1915(a). “Proceeding in forma pauperis in a civil case ‘is a privilege, not a right - fundamental or otherwise.'” Barnett v. Northwest School, No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26, 2000) (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)). The decision to grant or deny in forma pauperis status lies within the sound discretion of the court. Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999).

         There is a liberal policy toward permitting proceedings in forma pauperis when necessary to ensure that the courts are available to all citizens, not just those who can afford to pay. See generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987). In construing the application and affidavit, courts generally seek to compare an applicant's monthly expenses to monthly income. See Patillo v. N. Am. Van Lines, Inc., No. 02-2162, 2002 WL 1162684, at *1 (D.Kan. Apr. 15, 2002); Webb v. Cessna Aircraft, No. 00-2229, 2000 WL 1025575, at *1 (D.Kan. July 17, 2000) (denying motion because “Plaintiff is employed, with monthly income exceeding her monthly expenses by approximately $600.00”).

         In the supporting financial affidavit, Plaintiff states she is 44 years old and single. (Doc. 3-1, sealed, at 1-2.) Although she lists one dependent for whom she provides a significant amount of financial assistance, this individual is 19 years old. (Id., at 2.) Without evidence of extenuating circumstances such as this person suffering from some type of disability or infirmity, the Court does not consider the listed individual to be Plaintiff's dependent, regardless of whether she provides financial assistance to him.

         Plaintiff is currently employed, earning a low weekly wage. (Id., at 2.) She does not receive government benefits. (Id., at 4-5.) Plaintiff does not own real property, but does own an automobile, with some residual value. (Id., at 3-4.) She lists an insignificant amount of cash on hand. (Id., at 4.) Plaintiff lists reasonable amounts for monthly expenses, including rent, gas, groceries, insurance, and utilities. (Id., at 5.) She also lists five consumer debts with significant monthly payments. (Id., at 6.)

         The Court finds that, based on the information provided, Plaintiff's access to the Court would be significantly limited absent the ability to file this action without payment of fees and costs. As such, the Court GRANTS Plaintiff leave to proceed in forma pauperis. (Doc. 3, sealed.)

         B. Motion to Appoint Counsel.

         Plaintiff has also filed a motion requesting the appointment of counsel. (Doc. 4.) As an initial matter, the Court notes that there is no constitutional right to have counsel appointed in civil cases such as this one. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003). “[A] district court has discretion to request counsel to represent an indigent party in a civil case” pursuant to 28 U.S.C. § 1915(e)(1). Commodity Futures Trading Comm'n v. Brockbank, 316 Fed.Appx. 707, 712 (10th Cir. 2008). The decision whether to appoint counsel “is left to the sound discretion of the district court.” Lyons v. Kyner, 367 Fed.Appx. 878, n.9 (10th Cir. 2010) (citation omitted).

         The Tenth Circuit has identified four factors to be considered when a court is deciding whether to appoint counsel for an individual: (1) plaintiff's ability to afford counsel, (2) plaintiff's diligence in searching for counsel, (3) the merits of plaintiff's case, and (4) plaintiff's capacity to prepare and present the case without the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985) (listing factors applicable to applications under the IFP statute); Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing factors applicable to applications under Title VII). Thoughtful and prudent use of the appointment power is necessary so that willing counsel may be located without the need to make coercive appointments. The indiscriminate appointment of volunteer counsel to undeserving claims will waste a precious resource and may discourage attorneys from donating their time. Castner, 979 F.2d at 1421.

         As discussed in Section A., supra, based on the information provided to the Court, Plaintiff's financial situation would make it impossible for her to afford counsel. The second factor is Plaintiff's diligence in searching for counsel. Based on the information contained in the form motion, Plaintiff has been diligent, but unsuccessful, in attempting to secure legal representation. (Doc. 4.)

         The next factor is the viability of Plaintiff's claims in federal court. See McCarthy, 753 F.2d at 838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. A review of Plaintiff's Complaint reveals a dearth of facts and information linking any of Defendant's actions to Plaintiff's membership in protected classes based on race, sex, and/or age. (See Doc. 1, at 1-6.) Attached to Plaintiff's Complaint, however, is the charge of discrimination she filed with the Kansas Human Rights Commission. (Id., at 9-13.) As opposed to Plaintiff's Complaint, the KHCR charge contains numerous factual statements in which Plaintiff alleges discrimination by Defendants. (Id.) As to the majority of these statements, however, the Court has serious concerns as to whether Plaintiff has sufficiently linked Defendants' actions to Plaintiff's membership in a protected class based on age, race, and/or disability.

         Plaintiff's KHRC charge does, however, sufficiently state a prima facie case of retaliation. To establish a prima facie case of retaliation, a plaintiff must show that “(1) he or she engaged in protected opposition to discrimination, (2) a reasonable employee would have considered the challenged employment action materially adverse, and (3) a causal connection existed between the protected activity and the materially adverse action.” Hinds v. Sprint/United ...


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