Riscoe et al v. United States of America Food and Drug Administration

Filing 21

ORDER denying 4 Plaintiff's Motion for Appointment of Counsel. Signed by Magistrate Judge Teresa J. James on 12/22/2016. (Order sent to pro se plaintiff Gerald Riscoe by regular mail on 12/22/2016.)(byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GERALD M. RISCOE,
et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA FOOD
AND DRUG ADMINISTRATION,
Defendant.

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Case No. 16-cv-2653-CM-TJJ

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has filed his Civil Complaint against Defendant United States Food and Drug
Administration (“FDA”) involving Defendant FDA’s approval of the drug diethylstilbestrol. This
matter is before the Court on Plaintiff’s Motion for Appointment of Counsel (ECF No. 4).
Plaintiff requests that the Court appoint counsel to represent him in this case. For the reasons set
forth below, Plaintiff’s motion for the appointment of counsel is denied.
While a defendant in a criminal action has a constitutional right to be represented by an
attorney, it is well settled that a party in a civil action has no similar constitutional right to
appointment of counsel.1 For some types of civil cases, however, Congress has provided
statutory authority for the appointment of counsel. For example, in employment discrimination
actions brought under Title VII of the Civil Rights Act of 1964, the court may appoint counsel
for a plaintiff “in such circumstances as the court may deem just.”2 Another source of statutory
1

Rand v. Wolf Creek Nuclear Operating Corp., No. 11-4136-KHV, 2012 WL 1154509, at *2 (D.
Kan. Apr. 5, 2012) (“In general, there is no constitutional right to appointment of counsel in a civil
case.”); Lee v. Crouse, 284 F. Supp. 541, 543–44 (D. Kan. 1967) (“There is no absolute right to
appointment of counsel in either habeas corpus or civil rights actions.”).
2

42 U.S.C. § 2000e–5(f)(1).

authority is 28 U.S.C. § 1915(e)(1), the in forma pauperis statute, which provides that “[t]he
court may request an attorney to represent any person unable to afford counsel.” This provision,
however, is limited to persons who are proceeding in forma pauperis.3
In this case, there is no applicable statute authorizing the Court to appoint or request an
attorney to represent Plaintiff. This is not an employment discrimination case so the appointment
of counsel provision in 42 U.S.C. § 2000e–5(f)(1) is not applicable. In addition, the provision
allowing the court to request an attorney to represent an indigent party contained in the in forma
pauperis statute, 28 U.S.C. § 1915(e)(1), is not applicable because Plaintiff does not proceed in
forma pauperis in this action and has not shown that he is unable to afford counsel. In the
absence of any constitutional4 or statutory authority upon which the Court can appoint or request
an attorney to represent Plaintiff in this civil action, the Court must deny Plaintiff’s motion.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Appointment of
Counsel (ECF No. 4) is denied.
Dated this 22nd day of December, 2016, in Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

3

4

Rand, 2012 WL 1154509, at *2.

See Nelson v. Boeing Co., 446 F.3d 1118, 1120–22 (10th Cir. 2006) (noting “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 constitutional 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.”).