Livingston v. Sodexo, Inc.

Filing 15

MEMORANDUM AND ORDER denying 14 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 1/12/2012. Mailed to pro se party Annie Livingston by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANNIE LUCILE LIVINGSTON,

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Plaintiff,
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vs.
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SODEXO, INC., and AFFILIATED )
COMPANIES,
)
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Defendant.
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)

Case No. 11-4162-EFM-KGG

ORDER ON MOTION FOR APPOINTMENT OF COUNSEL
By Order filed November 23, 2011 (Doc. 5), the undersigned Magistrate
granted Plaintiff’s motion to proceed in forma pauperis (Doc. 3). Plaintiff
subsequently filed her motion for appointment of counsel (Doc. 14) on January 11,
2012. Having reviewed Plaintiff’s submission, in addition to her Employment
Discrimination 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 Castner factors, the Court has already determined that
Plaintiff has a limited ability to afford counsel. (See Doc. 5.) The Court sees no
glaring concerns on the face of Plaintiff’s federal court Complaint. (Doc. 1.) The
Court also finds that Plaintiff has engaged in a diligent search for counsel.
(See Doc. 4.) As such, the analysis will turn on the final Castner factor –
Plaintiff’s capacity to represent herself. 979 F.2d at 1420-21.
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
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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 her case more effectively, this fact alone does not
warrant appointment of counsel. Plaintiff adequately navigated the EEOC
administrative procedure and filed a coherent employment discrimination form
Complaint. (See Doc. 1.)
The Court sees no basis to distinguish Plaintiff from the many other
untrained individuals who represent themselves pro se in Courts throughout the
United States on any given day. To the contrary, Plaintiff has shown her ability to
represent herself by drafting her agency charge of discrimination and federal court
Complaint, which set out the operative facts to support her claims. (See generally,
Doc. 1.) Further, although Plaintiff is not trained as an attorney, and while an
attorney might present her 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 her case. As such, her Motion
to Appoint Counsel is DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s request for appointment
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of counsel (Doc. 14) is DENIED.
Dated at Wichita, Kansas, on this 12th day of January, 2012.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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