Escalante v. Escalante

Filing 10

ORDER denying without prejudice #4 Plaintiff's Motion to Appoint Counsel. Signed by Magistrate Judge Teresa J. James on 1/19/2023. Mailed to pro se Plaintiff by regular mail. (byk)

Case 2:22-cv-02485-TC-TJJ Document 10 Filed 01/19/23 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW ESCALANTE,
Plaintiff,
v.
JANELLE ESCALANTE,
Defendant.

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Case No: 22-cv-2485-TC-TJJ

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
This matter comes before the Court on Plaintiff’s Motion to Appoint Counsel (ECF No.
4). Plaintiff, proceeding pro se and in forma pauperis,1 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 without prejudice.
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 right to appointment of counsel.2
If a party is proceeding in forma pauperis under 28 U.S.C. § 1915(a), a court “may request an
attorney to represent any person unable to afford counsel.”3 The appointment of counsel under
28 U.S.C. § 1915(e)(1) is a matter within the discretion of the district court.4 In determining
1

See Order granting Plaintiff’s Application to Proceed in District Court Without Prepaying Fees
and Costs (ECF No. 9).
2

Lee v. Crouse, 284 F. Supp. 541, 543-44 (D. Kansas 1967) (“There is no absolute right to
appointment of counsel in either habeas corpus or civil rights actions.”).
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4

28 U.S.C. § 1915(e)(1).

Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (a district court has discretion to
request an attorney to represent a litigant who is proceeding in forma pauperis under 28 U.S.C. §
1915(e)(1)).

Case 2:22-cv-02485-TC-TJJ Document 10 Filed 01/19/23 Page 2 of 2

whether to appoint counsel under § 1915(e)(1), the district court may consider a variety of
factors, including: (1) the merits of the litigant’s claims, (2) the nature of the factual issues
raised in the claims, (3) the litigant’s ability to present his/her claims, and (4) the complexity of
the legal issues raised by the claims.5
The Court will be issuing a Notice and Order to Show Cause requiring Plaintiff to show
cause why this cause should not be dismissed for lack of subject-matter jurisdiction. The Court
therefore denies Plaintiff’s Motion for Appointment of Counsel without prejudice to re-filing, if
the Court finds Plaintiff has established the Court has subject-matter jurisdiction over this case
after he timely responds to the Court’s Notice and Order to Show Cause.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for
Appointment of Counsel (ECF No. 4) is denied without prejudice.
IT IS FURTHER ORDERED that a copy of this Order shall be mailed to Plaintiff.
IT IS SO ORDERED.
Dated January 19, 2023, at Kansas City, Kansas.

Teresa J. James
U.S. Magistrate Judge

5

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

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