Love v. Suber et al

Filing 39

MEMORANDUM AND ORDER denying 36 Motion for Appointment of Counsel. See Memorandum and Order for additional details. Signed by Magistrate Judge Gerald L. Rushfelt on 5/30/2013. (Mailed to pro se Plaintiff by regular mail.) (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL E. LOVE,
Plaintiff,
v.
RICKY SUBER, et al.,
Defendants.

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Case No. 12-2623-CM-GLR

MEMORANDUM AND ORDER
Before the Court is a Motion for Appointment of Counsel (ECF No. 36) filed by Plaintiff.
For the reasons set out below, the Court denies the motion.
I.

Relevant Factual Background
Plaintiff pro se commenced this action in September 2012 by filing a civil complaint and a

motion to proceed in forma pauperis. The Court has granted Plaintiff permission to proceed with
this action in forma pauperis. His complaint alleges that defendants have failed to provide a safe
and peaceful living environment in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §§ 36013619. He also alleges that defendants have discriminated and harassed him due to his race and
religion in violation of sections 804(b) and 818 of Title VIII of the Civil Rights Act of 1968, as
amended by the FHA.
II.

Motion for Appointment of Counsel
In general, there is no constitutional right to appointment of counsel in a civil case.1 For
1

See Nelson v. Boeing Co., 446 F.3d 1118, 1120-22 (10th Cir. 2006) (noting that “the only
context in which courts have recognized a constitutional right to effective assistance of counsel in
civil litigation is in immigration cases” and declining to recognize a right to counsel in a Title VII
context); Sandle v. Principi, 201 F. App’x 579, 582 (10th Cir. 2006) (“There is no constitutional
right to counsel in either a Title VII case or other civil case.”); Castner v. Colo. Springs Cablevision,
979 F.2d 1417, 1420 (10th Cir. 1992) (holding that there is no constitutional right to counsel in Title

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.”2 This statute does not provide
a statutory right to counsel.3
Under § 1915(e)(1), the Court has broad discretion to request counsel to provide representation.4 When deciding whether to request an attorney to represent an indigent party under §
1915(e)(1), the courts evaluate the merits of the litigant’s claims, “the nature and complexity of the
factual and legal issues,” and the litigant’s ability to investigate the facts and present the claims.5
The party seeking counsel under § 1915(e)(1) has the burden “to convince the court” that asserted
claims have sufficient merit to warrant the Court requesting an attorney to represent the movant.6

VII case); Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989) (“There is no constitutional right
to appointed counsel in a civil case.”).
2

While courts sometimes use the term “appoint” when referring to § 1915(e)(1), the more
appropriate terminology is request. See Mallard v. U.S. Dist. Ct. S. Dist. Iowa, 490 U.S. 296, 300-09
(1989) (emphasizing that § 1915(d), the predecessor to § 1915(e)(1), does not provide for compulsory appointment of counsel). Before being renumbered and amended in 1996, § 1915(d) provided: “The court may request an attorney to represent any such person unable to employ counsel
and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is
frivolous or malicious.” See id. at 298. Even though “§ 1915(e) does not authorize the district court
to require an unwilling attorney to represent an indigent defendant in a civil case, it does allow the
court to make an appropriate request that legal assistance be provided.” Loftin v. Dalessandri, 3 F.
App’x 658, 663 (10th Cir. 2001) (citing Mallard).
3

See, e.g., Leo v. Garmin Int’l.,No. 10-2495-JTM, 2010 WL 4174643, at *1 (D. Kan. Oct.
20, 2010); Patterson v. Davita Dialysis, No. 09-2131-JAR-GLR, 2009 WL 902406, at *1 (D. Kan.
Mar. 31, 2009).
4

Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App’x 744, 749 (10th Cir. 2009).

5

Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citing Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
6

Id.
2

To warrant appointment of counsel, Plaintiff must affirmatively show that he asserts
meritorious claims. But he makes no attempt to demonstrate the merits of his claims in his motion
for appointment. Consequently, the Court is left to consider his complaint. His complaint standing
alone, however, provides an insufficient basis to find that this action has sufficient merit to warrant
appointment of counsel. He asserts that he has presented his claims through an administrative
procedure, but fails to even reveal the result of that procedure. An attachment to the complaint dated
August 22, 2012, shows that his administrative complaint was received. It does not indicate when
or if the administrative process was completed. In light of the information before it, the Court does
not find that Plaintiff has carried his burden to show that his claims are of such merit as to warrant
a request for an attorney to represent Plaintiff.7
Nothing before the Court, moreover, suggests that Plaintiff needs an attorney to adequately
present his case. The factual and legal issues in this case are not complex. Plaintiff has not shown
any reason why he cannot adequately research and investigate the case on his own. His pleadings
and written submissions reflect some understanding of court rules and procedures, and he has access
to local law libraries. At this stage of the proceedings, it is unclear whether the evidence in this case
will consist of conflicting testimony so as to require skill in the presentation of evidence and crossexamination or whether the appointment of counsel will shorten trial or assist in a just determination.
For the foregoing reasons, the Court denies the Motion for Appointment of Counsel (ECF
No. 36) filed by Plaintiff without prejudice to his filing a similar motion, if he survives summary
dismissal. If the case proceeds to trial, furthermore, the Court may on its own motion reconsider
7

This is not to say that the claims are obviously frivolous or legally insufficient. Appointment
of counsel is clearly not warranted in those circumstances. But that is not a necessary determination
when ruling on a motion for appointment of counsel.
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whether the circumstances warrant a request for counsel to represent Plaintiff at that time.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 30th day of May, 2013.

S/Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge

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