Kuri v. Office of Administrative Hearings et al

Filing 5

ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. The clerk is directed to stay service of process pending the District Court's review of the Report and Recommendation filed simultaneously herein (ECF No. 6). Signed by Magistrate Judge Gwynne E. Birzer on 5/23/18. Mailed to pro se party Chrystal Nicole Kuri, 1641 N. Poplar, Wichita, KS 67214 by certified mail; Certified Tracking Number: 7012 3050 0001 1190 3719. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CRYSTAL NICOLE JONES,
aka Chrystal Nicole Kuri,
Plaintiff,
v.
OFFICE OF ADMINISTRATIVE
HEARINGS, et al.,
Defendants.

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Case No. 18-2173-CM-GEB

ORDER
This matter is before the Court on Plaintiff Crystal Nicole Kuri’s Motion to
Proceed without Prepayment of Fees (ECF No. 3), and her Motion to Appoint Counsel
(ECF No. 4). For the reasons set forth below, Plaintiff’s Motion to proceed in forma
pauperis (ECF No. 3) is GRANTED, and Plaintiff’s Motion for Appointment of Counsel
(ECF No. 4) is DENIED.

I.

Motion to Proceed Without Payment of Fees
Under 28 U.S.C. § 1915(a), the Court has the discretion1 to authorize the filing of

a civil case “without prepayment of fees or security thereof, by a person who submits an
affidavit that . . . the person is unable to pay such fees or give security thereof.”
“Proceeding in forma pauperis in a civil case ‘is a privilege, not a right—fundamental or

1

Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26,
2000) (citing Cabrera v. Horgas, 173 F.3d 863, at *1 (10th Cir. April 23, 1999)).

otherwise.’”2 After careful review of Plaintiff’s attached affidavit of financial resources
(ECF Nos. 3-1 and 3-2, sealed), and the comparison of her monthly income to her
monthly expenses, the Court finds she is financially unable to pay the filing fee.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed without
Prepayment of Fees (ECF No. 3) is GRANTED. Although service of process would
normally be undertaken by the clerk of court under 28 U.S.C. § 1915(d) and Fed. R. Civ.
P. 4(c)(3), the clerk is directed to stay service of process pending the District Court’s
review of the Report and Recommendation filed simultaneously herein (ECF No. 6).3

II.

Motion for Appointment of Counsel
There is no constitutional right to counsel in a civil action.4 An evaluation of

whether to appoint counsel requires consideration of those factors discussed by the Tenth
Circuit Court of Appeals in Castner v. Colorado Springs Cablevision,5 including: (1) the
plaintiff’s ability to afford counsel, (2) the plaintiff’s diligence in searching for counsel,
(3) the merits of the plaintiff’s case, and (4) the plaintiff’s capacity to prepare and present
the case without the aid of counsel. Additionally, as in all federal cases, the law requires
the plaintiff to state a viable claim for relief and the court must have subject matter

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Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
See Webb v. Vratil, No. 12-2588-EFM-GLR, ECF No. 7 (D. Kan. Sept. 28, 2012) (withholding
service of process pending review under 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3)).
4
See Sandle v. Principi, 201 F. App'x 579, 582 (10th Cir. 2006) (citing Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992) (Title VII case); Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989) (civil case)).
5
979 F.2d 1417, 1420-21 (10th Cir. 1992).
3

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jurisdiction over that claim. In consideration thereof, thoughtful and prudent care in
appointing representation is necessary so that willing counsel may be located.6
After careful consideration, the Court declines to appoint counsel to represent
Plaintiff. Plaintiff has satisfied the first prong of the Castner analysis—her inability to
afford counsel—through the financial affidavits provided with her motion to proceed in
forma pauperis (ECF Nos. 3-1 and 3-2, sealed). Additionally, she fulfilled the second
prong of the analysis—diligence in searching for counsel—by producing the names of six
attorneys whom she contacted about the case, along with a description of her efforts to
obtain representation. But despite meeting these initial requirements, the Court finds she
cannot meet the third prong of analysis, as the Court has serious concerns regarding its
ability to adjudicate Plaintiff’s claims.

Simultaneously with this order, the Court

recommends this case be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(iii) as
seeking relief from defendants who are immune from suit, and for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(h)(3). Under the circumstances, the request for
appointment of counsel shall be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of
Counsel (ECF No. 4) is DENIED.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 23rd day of May 2018.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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Id. at 1421.

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