Lewis v. Frontier AG, Inc. et al
Filing
8
MEMORANDUM AND ORDER denying 4 Motion to Appoint Counsel. Signed by Magistrate Judge Gerald L. Rushfelt on 2/19/14. Mailed to pro se party Anthony Lewis by regular mail. (gc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY LEWIS,
Plaintiff,
v.
FRONTIER AG, INC., et. al,
Defendants.
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CIVIL ACTION
No. 14-2010-JTM-GLR
MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion for Appointment of Counsel (ECF 4). For the reasons
set out below, the Court denies the motion.
I.
Relevant Factual Background
Plaintiff pro se commenced this action on January 13, 2014 by filing a civil complaint. His
complaint alleges employment discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e, et seq. The Court granted Plaintiff’s motion to proceed in
forma pauperis (ECF 7).
II.
Motion for Appointment of Counsel
In general, there is no constitutional right to appointment of counsel in a civil case.1 For
parties proceeding in forma pauperis, 28 U.S.C. § 1915(e)(1) provides discretionary authority to
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
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.”).
“request an attorney to represent any person unable to afford counsel.”2 The provision, however,
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
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
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
alone, however, provides an insufficient basis to find that this action has sufficient merit to warrant
appointment of counsel.
Nothing before the Court, moreover, suggests that Plaintiff needs an attorney to adequately
present his case. The factual and legal issues in this employment discrimination 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 cross-examination or whether the appointment of counsel will shorten
trial or assist in a just determination. The Court finds that Plaintiff has not met his burden for the
appointment of counsel under 28 U.S.C. § 1915(e)(1).
In addition § 1915(e)(1), for actions brought under Title VII, 42 U.S.C. § 2000e-5(f)(1)
provides discretionary authority for appointing counsel “in such circumstances as the court may
deem just.”7 This statute provides no statutory right to counsel—it is merely a “a statutory right to
request appointed counsel at court expense.”8
The Court has “extremely broad” discretion to appoint counsel under § 2000e-5(f)(1).9 To
guide the court’s discretion, the Tenth Circuit has identified factors that courts consider when
7
While this discretion is “extremely broad,” as discussed in more detail later, long-standing
Tenth Circuit precedent makes the financial ability to pay for counsel and other factors “relevant to
the inquiry whether to appoint counsel.” See Castner, 979 F.2d at 1420-21.
8
See Nelson 446 F.3d at 1120-22 (emphasis added).
9
Castner, 979 F.2d at 1420.
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evaluating a motion for appointment of counsel.10 Appointment of counsel is only appropriate under
§ 2000e-5(f)(1) after the plaintiff has affirmatively shown “(1) financial inability to pay for counsel;
(2) diligence in attempting to secure counsel; and (3) meritorious allegations of discrimination.”11
In close cases, the Court should also consider whether the plaintiff has the “capacity to present the
case without counsel.”12
When considering appointment of counsel, the Court remains mindful that Congress has
provided no mechanism for compensating appointed attorneys.13 “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 precious resource and may discourage attorneys from donating their time.”14 Finally, the
Court notes that it has a limited pool of volunteer attorneys from whom it may appoint counsel.
A. Financial Ability to Secure Counsel
In the appointment-of-counsel context, the pertinent inquiry is whether the party seeking
appointment can “meet his or her daily expenses” while also hiring an attorney.15 The Court granted
Plaintiff permission to proceed in forma pauperis, and this factor weighs in Plaintiff’s favor.
10
See id. at 1420-21.
11
Id. at 1421.
12
Id.
13
Id.
14
Id.
15
Castner, 979 F.2d at 1422.
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B. Efforts to Secure Counsel
To obtain appointment of counsel, a party must make diligent efforts to secure counsel. This
typically requires the party to meet with and discuss the case with at least five attorneys.16 Plaintiff
states that he has contacted eight attorneys, but has been unable to obtain their services. But he does
not provide any indication that he personally met with and conferred with the attorneys about his
case. Nor does he provide any reason for not conferring with at least five attorneys. These failures
provide adequate grounds to deny the motion for appointment.17
C. Merit of Allegations
To warrant appointment of counsel, Plaintiff must also affirmatively show that he asserts
meritorious claims. As previously noted, Plaintiff 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 at this time.
The Court recognizes that its perception of the merits and other factors relevant to the issue
of appointment of counsel may vary over time.18 Due to such variance, courts “often re-evaluate the
need for appointed counsel at various stages of the proceedings.”19 While “a court may well appoint
16
Jeannin v. Ford Motor Co., No. 09-2287-JWL-DJW, 2009 WL 1657544, at *1 & n.10 (D.
Kan. June 12, 2009).
17
See id. at *1.
18
See Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 1998) (relying extensively on factors
set out in Poindexter v. FBI, 737 F.2d 1173 (D.C. Cir. 1984)).
19
Id.
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counsel at the outset of a case, it might also decide to postpone the decision—for example, until after
resolution of dispositive motions—in order to give itself both more time and more information to
evaluate the plaintiff’s capabilities and the merits of the case.”20 As aptly stated in Ficken:
Other factors contribute to the tentative nature of orders denying appointment of
counsel. Because district judges are reluctant to “squander[] [their] limited resources
of attorneys willing to take pro bono appointments,” they often postpone the appointment decision until after dispositive motions as a means of weeding out frivolous or
unmeritorious cases. The timing of the appointment may also reflect the district
court’s assessment of the adequacy of the record for purposes of its own decisionmaking. A district court that initially denies a motion to appoint counsel because it
feels comfortable resolving a motion to dismiss on the basis of a record produced by
a pro se plaintiff may later appoint counsel to ensure the development of a record
adequate for summary judgment or trial.21
The considerations discussed in Ficken are just as relevant today. Given the burgeoning
federal court dockets, increased pro se filings, and a seemingly ever-decreasing pool of pro bono
attorneys, the timing of a request for appointment of counsel arguably takes on more importance.
In most cases the courts simply lack sufficient information about the merits of the claims and/or an
inability of the plaintiff to present the case without counsel. And because the movant has the burden
to affirmatively show that asserted claims are meritorious, motions for appointment filed early in a
case may not succeed. But by denying such motions without prejudice to a similar motion at a later
stage of the litigation, the courts do not preclude appointment should it become apparent that counsel
should be appointed.
For these reasons, the Court denies the motion for appointment of counsel. At this point in
the litigation, the factors weigh against requesting an attorney to represent Plaintiff.
20
Id.
21
Id.
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III.
Conclusion
For the foregoing reasons, the Court denies the Motion for Appointment of Counsel (ECF
No. 4) 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
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 19th day of February, 2014.
S/Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge
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