United States District Court, D. Kansas
URSULA S. THOMAS COLE, Plaintiff,
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.
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).
Motion to Proceed IFP.
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).
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”).
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.
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.)
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.)
Motion to Appoint Counsel.
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).
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.
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.)
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.
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.”
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