Wilson v. Rokusek et al

Filing 21

MEMORANDUM AND ORDER denying 3 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 5/11/2012.Mailed to pro se party James Wilson by certified mail (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES L. WILSON,
Plaintiff,
vs.
MARK ROKUSEK, et al.,
Defendants.

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Case No. 11-3204-JTM-KGG

ORDER ON MOTION FOR APPOINTMENT OF COUNSEL
By Order filed March 6, 2012 (Doc. 5), Judge Crow, the previously assigned
District Judge, granted Plaintiff’s motion to proceed in forma pauperis (Doc. 2).
Plaintiff’s motion for appointment of counsel (Doc. 3), however, remains pending.
Having reviewed Plaintiff’s submission, in addition to his Complaint (Doc. 1) and
IFP motion (Doc. 3), the Court DENIES Plaintiff’s motion.
The Tenth Circuit has identified four factors to be considered when a court is
deciding whether to appoint counsel for an individual: (1) plaintiff’s ability to
afford counsel, (2) plaintiff’s diligence in searching for counsel, (3) the merits of
plaintiff’s case, and (4) plaintiff’s capacity to prepare and present the case without
the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985)

(listing factors applicable to applications under the IFP statute); Castner v.
Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing
factors applicable to applications under Title VII). 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 a precious resource and may
discourage attorneys from donating their time. Castner, 979 F.2d at 1421.
In considering the first Castner factor, by granting Plaintiff’s IFP motion,
the prior Magistrate already determined that Plaintiff has a limited ability to afford
counsel. (See Doc. 5.) Any concerns identified on the face of Plaintiff’s federal
court Complaint (Doc. 1) have been adequately addressed in Defendants’ Motion
to Dismiss (Doc. 14), which will be decided by the District Court.
As for the third Castner factor, however, this Court finds that Plaintiff has
not engaged in a diligent search for counsel. (See Doc. 3.) The form motion
specifically enumerates spaces for Plaintiff to identify six attorneys he has
contacted about representation and Plaintiff has only contacted two. Rather than
instruct Plaintiff to contact additional counsel, the Court will continue its analysis,
which will turn on the final Castner factor – Plaintiff’s capacity to represent
himself. 979 F.2d at 1420-21.
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In considering this factor, the Court must look to the complexity of the legal
issues and Plaintiff’s ability to gather and present crucial facts. Id., at 1422. The
Court notes that the factual and legal issues in this case are not unusually complex.
Cf. Kayhill v. Unified Govern. of Wyandotte, 197 F.R.D. 454, 458 (D.Kan. 2000)
(finding that the “factual and legal issues” in a case involving a former employee’s
allegations of race, religion, sex, national origin, and disability discrimination were
“not complex”). Further, although Plaintiff is not trained as an attorney, and while
an attorney might present his case more effectively, this fact alone does not warrant
appointment of counsel.
The Court sees no basis to distinguish Plaintiff from the many other
untrained individuals and inmates who represent themselves pro se in Courts
throughout the United States on any given day. To the contrary, Plaintiff has
shown he has adequate ability to represent himself by drafting his federal court
Complaint, which set out the operative facts to support his claims. (See generally,
Doc. 1.) Further, although Plaintiff is not trained as an attorney, and while an
attorney might present his case more effectively, this fact alone does not warrant
appointment of counsel.
The Court therefore finds that Plaintiff appears to be an articulate individual
with the ability to gather and present facts crucial to his case. As such, his Motion
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to Appoint Counsel is DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s request for appointment
of counsel (Doc. 3) is DENIED.
Dated at Wichita, Kansas, on this 11th day of May, 2012.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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