Coffman v. Hutchinson Community College

Filing 23

MEMORANDUM AND ORDER denying 3 Plaintiff's motion for appointment of counsel; denying 4 Plaintiff's motion for mediation; denying 5 Plaintiff's motion to accept petitions; denying 6 Plaintiff's motion for sealed document ation under Title 79.4; denying 9 Plaintiff's motion to make all exhibits and evidence for discovery to the defendants; denying 10 Plaintiff's motion for [amended] exhibit list for mediation or summary judgment brief order; and denying 11 Plaintiff's (amended) motion for appointment of counsel. Signed by Magistrate Judge Gwynne E. Birzer on 9/7/18. Mailed to pro se party Dustin D. Coffman by certified mail; Certified Tracking Number: 7012 3050 0001 1190 3320. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DUSTIN D. COFFMAN,

)
)
Plaintiff,
)
)
v.
)
)
HUTCHINSON COMMUNITY COLLEGE, )
et al.,
)
)
Defendants.
)
)

Case No. 17-4070-SAC-GEB

MEMORANDUM AND ORDER
This matter is before the Court on the following motions:
 Plaintiff’s motion for appointment of counsel (ECF No. 3);
 Plaintiff’s motion for mediation (ECF No. 4);
 Plaintiff’s motion to accept petitions (ECF No. 5);
 Plaintiff’s motion for sealed documentation under title 79.4 (ECF No. 6);
 Plaintiff’s motion to make all exhibits and evidence for discovery to the
defendants (ECF No. 9);
 Plaintiff’s motion for motion for [amended] exhibit list for mediation or
summary judgement brief order (ECF No. 10); and
 Plaintiff’s (amended) motion for appointment of counsel (ECF No. 11).
For the reasons set forth below, all motions are DENIED.

I.

Background
On August 7, 2017, Plaintiff filed this case, acting pro se. He is a former student

of Hutchinson Community College, and claims the school and certain of its instructors

and administrators violated his federal and state constitutional rights by dismissing him
from the college’s nursing program in approximately fall 2015 (see Complaint, ECF No.
1, and Supplement, ECF No. 7). It appears Plaintiff has attempted service on all named
defendants (see Returns of Service, ECF Nos. 12-17).
In the month since filing his case, Plaintiff has filed eight motions for the Court’s
consideration. In addition to the seven motions addressed herein, Plaintiff filed a motion
for summary judgment (ECF No. 8), which was recently denied without prejudice by
Senior District Judge Sam A. Crow (Order, ECF No. 19, Aug. 30, 2017). Judge Crow
found Plaintiff’s motion only contained “general guidelines regarding common legal
practices for summary judgment motions, but did not “expressly ask for judgment upon a
particular claim or against a particular defendant” or include a statement of material facts
or memorandum of law, as required. (Id.)

II.

Plaintiff’s Motions for Appointment of Counsel (ECF Nos. 3 and 11)
Simultaneous with the filing of this action, Plaintiff submitted an initial Motion for

Appointment of Counsel (ECF No. 3) which was largely incomplete.

The motion

contained the name of only one attorney with whom Plaintiff had consulted prior to
filing, and Plaintiff did not submit a financial affidavit as required. However, Plaintiff
later submitted an amended motion (ECF No. 11), along with a financial affidavit (ECF
No. 18); both of which appear complete. The Court is now prepared to address the issue
of appointment of legal counsel.

2

A.

Legal Standard

Although a criminal defendant has a constitutional right to representation by an
attorney, there is no similar constitutional right to counsel in a civil action such as this
one.1 Some statutes, however, provide the court with discretion to appoint counsel for a
civil litigant.

For example, both the Americans with Disabilities Act, 42 U.S.C. §

12117(a), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5(f)(1),
provide discretionary authority for appointing counsel “in such circumstances as the court
may deem just.”2 If a plaintiff sues under a statute which provides no authority for
appointment of counsel, general authority for requesting counsel under 28 U.S.C. §
1915(e)(1) may govern.3
Under 28 U.S.C. § 1915(e)(1), in its discretion, the “court may request an attorney
to represent any person unable to afford counsel.”4 When evaluating whether to appoint
counsel, the court considers multiple 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 claims, and (4) the complexity of the legal issues raised by the claims.5 The

1

Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).
Rand v. Wolf Creek Nuclear Operating Corp., No. 11-4136-KHV-GLR, 2012 WL 1154509, at
*2 (D. Kan. Apr. 5, 2012) (discussing appointment of counsel under the ADA); Nelson v. Boeing
Co., 446 F.3d 1118, 1120 (10th Cir. 2006) (discussing appointment of counsel under Title VII,
and noting “Title VII grants litigants a statutory right to request appointed counsel at court
expense”).
3
Rand, 2012 WL 1154509, at *2.
4
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)).
5
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). See also Castner v. Colorado
Springs Cablevision, 979 F.2d 1417, 1420-21 (10th Cir. 1992) (applying similar factors in the
2

3

court also considers the movant’s diligence in attempting to secure counsel.6 Thoughtful
and prudent care in appointing representation is necessary so that willing counsel may be
located.7 The court has an obligation not to make indiscriminate appointments on every
occasion that a plaintiff seeks court-ordered counsel,8 particularly in light of the
expanding federal court dockets, increased filings by pro se parties, and decreasing
number of attorneys willing to accept appointments.9

Moreover, § 1915(e)(1)’s

application “is limited to persons proceeding in forma pauperis [without payment of
filing fees] and does not provide a statutory right to counsel.”10

B.

Discussion

As a threshold issue, the Court notes Plaintiff does not proceed in forma pauperis
in this case, but paid the $400 filing fee upon filing. Neither did he file this case under
the ADA or Title VII. Therefore, none of the statutory bases for appointing counsel,
discussed above, apply to Plaintiff’s request, and the Court is devoid of authority to

context of a request for counsel in an employment discrimination case under 42 U.S.C. 2000(e)–
5 and 28 U.S.C. § 1915).
6
Adkins v. Kansas Comm'n on Judicial Qualifications, No. 11-4109-SAC-KGS, 2011 WL
13133967, at *1 (D. Kan. Sept. 22, 2011) (citing Castner, 979 F.2d at 1420).
7
Castner, 979 F.2d at 1421.
8
Wheeler v. Wichita Police Dept., No. 97-1076-FGT, 1997 WL 109694, at *2 (D. Kan. Feb. 27,
1997).
9
See Sause v. Louisburg Police Dept., No. 15-9633-JAR-TJJ, ECF No. 16 (D. Kan. Jan. 6,
2016).
10
Cox v. LNU, 924 F. Supp. 2d 1269, 1280 (D. Kan. 2013)(citing, inter alia, Rand, 2012 WL
1154509, at *3; Leo v. Garmin Int'l, No. 10–2495–JTM, 2010 WL 4174643, at *1 (D. Kan. Oct.
20, 2010); Patterson v. Davita Dialysis, No. 09–2131–JAR–GLR, 2009 WL 902406, at *1 (D.
Kan. Mar. 31, 2009); Witherspoon v. Wyandotte Cnty., Kan., No. 08–2315–JAR–DJW, 2008
WL 4148626, at *2 (D. Kan. Sept. 3, 2008)).

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appoint counsel under these circumstances. The Court must deny Plaintiff’s request for
appointment of counsel on this basis alone.
But even if Plaintiff did seek or qualify to proceed with his case in forma pauperis,
the Court would not appoint counsel, at this time, after application of the factors outlined
above.

With regard to Plaintiff’s financial ability to afford counsel, the Court has

thoroughly considered his financial affidavit (ECF No. 18).

Plaintiff is currently

unemployed, but owns rental property from which he derives some minimal income.
Despite this rental income, his affidavit reveals monthly obligations that outweigh his
apparent income, so his financial ability to engage counsel is questionable.
Plaintiff also sufficiently demonstrates diligence in seeking counsel.

In his

amended Motion (ECF No. 11), he lists a number of attorneys with whom he consulted,
but who declined to accept his case for various reasons.
After careful consideration, however, even if Plaintiff qualified to proceed in
forma pauperis, the Court would not appoint counsel. Although the Court is satisfied he
is both unable to afford counsel and has sufficiently demonstrated diligence in searching
for counsel, the Court is unable to fully evaluate the remaining factors. The merits of
Plaintiff’s claims are not facially apparent from the information presented in the
Complaint.

And, although his Complaint is verbose, at this stage, Plaintiff has

demonstrated no reason why he is unable to adequately present the case on his own. His
pleadings and motions appear articulate. This is the third case filed by Plaintiff in this

5

Court over the past eighteen months,11 and he seems to have a functional grasp of Court
procedures.
The Court recognizes that “its perception of the merits and other factors relevant
to the issue of appointment of counsel may vary”12 as the case progresses. Although “a
court may well appoint counsel at the outset of a case, it might also decide to postpone
the decision—for example, until after resolution of dispositive motions—in order to give
itself both more time and more information to evaluate the plaintiff’s capabilities and the
merits of the case.”13 Postponing a decision to appoint counsel could allow the Court to
gain more information about both the merits of the claims and Plaintiff’s ability to
present his case.14
The Court is without authority to appoint counsel for Plaintiff under the current
facts and legal theories of this case. But providing Plaintiff some latitude as a pro se
party, and recognizing the Court’s evaluation of the case could change as the case
progresses, Plaintiff’s motions for appointment of counsel shall be DENIED without
prejudice to later refiling.
IT IS THEREFORE ORDERED that Plaintiff’s Motions for Appointment of
Counsel (ECF Nos. 3, 11) are DENIED without prejudice.

11

See Coffman v. Childers, No. 16-1109-EFM-KGG (filed Apr. 20, 2016; closed May 16, 2016);
Coffman v. Walters, No. 16-1171-EFM-GEB (filed June 2, 2016; closed Oct. 6, 2016).
12
Jones v. Maritz Research Co., Case No. 14-2467-SAC-GLR, 2014 WL 6632929, at *3 (D.
Kan. Nov. 21, 2014).
13
Zillner v. Brennan, No. 15-9904-DDC-GLR, 2016 WL 81229, at *2-4 (D. Kan. Jan. 7, 2016)
(citing Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 1998) (internal citations omitted)).
14
Jones, 2014 WL 6632929, at *3 (citing Ficken, 146 F.3d at 981).
6

III. Plaintiff’s Motion for Mediation (ECF No. 4), Motion for Sealed
Documentation (ECF No. 6), and Motion for Discovery (ECF No. 9)
Much as Judge Crow recognized regarding Plaintiff’s motion for summary
judgment, three of his pending motions simply recite District of Kansas Local Rules,
rather than request action from the Court. First, his Motion for Mediation (ECF No. 4)
simply recites, word-for-word, D. Kan. Rule 16.3 regarding Alternative Dispute
Resolution. Aside from the title of his document (“Motion for Mediation”), Plaintiff
does not seek any specific relief or provide any facts or argument regarding any relief
he requests from the Court.
Similarly, Plaintiff’s Motion for Sealed Documentation under Title 79.4 (ECF No.
6) recounts D. Kan. Rule 79.4 regarding sealed files and documents in civil cases. The
motion does not seek specific Court action, but merely recites the rule in its entirety.
This rule establishes the District of Kansas policy regarding the length of maintaining
the privacy of any court document filed under seal (non-public) in a civil action. To
date, only one document (Plaintiff’s Financial Affidavit, ECF No. 18) is filed under
seal. This rule would not come into play until 10 years after the entry of final judgment
in this case.
Finally, Plaintiff’s Motion “to make all [exhibits] and evidence for discovery to
the [defendants]” (ECF No. 9) suffers from the same defect. Plaintiff merely recites in
full D. Kan. Rule 37.1, addressing motions relating to discovery. Plaintiff does not

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request specific Court action, nor provide any facts or arguments to support any request.
To date, discovery has not yet commenced15 and any discovery motion is premature.
Even extending to Plaintiff’s motions the liberal construction afforded a pro se
party,16 none of the motions discussed herein either seek specific action from the Court
or provide any factual or legal basis for Court action. Furthermore, the topics of
Plaintiff’s motions can be brought to the Court’s attention at the appropriate later stages
of the case.

For example, a schedule for both discovery and mediation will be

addressed at the Rule 16 Scheduling Conference, held after all parties to the case have
entered their appearances. Plaintiff is encouraged to thoroughly review the information
for

self-represented

litigants

on

http://www.ksd.uscourts.gov/self-representation/,

the

Court’s

particularly

webpage
the

“Civil

at
Case

Flowchart” and rules sections.
Therefore, the motions (ECF Nos. 4, 6, and 9) are DENIED without prejudice to
later filing, in the event the topics become ripe for discussion as the case progresses.
IV. Plaintiff’s Motion to Accept Petitions (ECF No. 5)
This motion consists solely of a title (“Motion to accept petitions for Federal
court”) and a one-sentence request for the Court to “see attached Petition and case and
points document.” (ECF No. 5, at 1.) To the extent Plaintiff asks this Court to accept
15

See Fed. R. Civ. P. 26(d)(1), which generally provides, “A party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f).”
16
See, e.g., Creamer v. Stortz Auction, No. 15-4853-RDR, 2015 WL 1262905, at *1 (D. Kan.
Mar. 19, 2015) (noting the court’s “liberal construction of plaintiff's complaint cannot excuse her
failure to plead sufficient facts”) (citing Porter v. Graves, 2014 WL 7399058, at * 2 (10th Cir.
Dec. 31, 2014)).
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his Complaint or other documents, the motion is DENIED AS MOOT because
Plaintiff’s filings have already been accepted and filed on the Court’s electronic case
filing system. To the extent Plaintiff seeks some other action by this Court, the motion
is DENIED for failure to outline the specific relief Plaintiff seeks.

V.

Plaintiff’s Motion to Accept Documents (ECF No. 10)
Plaintiff’s final pending motion is entitled “motion for [amended] exhibit list for

mediation or summary [judgment] brief.” The body of the document states it is a “list
of exhibits and motion to accept all documents to the court if mediation fails and will
need to be disclosed to the mediator for settlement out of court.” (ECF No. 10, at 1.)
The list of documents attached to Plaintiff’s motion appears to be a list of items which
Plaintiff intends to offer as evidence in this case.
If Plaintiff offers this list as evidence in support of his motion for summary
judgment, that motion has been denied without prejudice as previously discussed
(Motion, ECF No. 8; Order, ECF No. 19). In the event Plaintiff intends for the list of
items to be received into the Court as evidence, the Court does not typically receive
evidence directly from the parties during discovery. Rather, the process of discovery
takes place primarily between the parties themselves. Through such methods as written
questions, document requests, and depositions,17 the parties exchange the information
each party intends to utilize to support their case. Generally, only in support of a

17

See, e.g., Fed. R. Civ. P. 30, 31, 33, 34, and 36, all discussing various methods of discovery.
9

specific pretrial discovery motion or motion for judgment, or much later during a trial,
will the Court review a party’s evidence.
The list provided by Plaintiff may be more akin to one portion of the initial
disclosures required under Fed. R. Civ. P. 26(a)(1)(ii) to be provided to Defendants
prior to the first scheduling conference. Again, this topic will arise at the proper phase
of the case, and Plaintiff will be instructed by later Court order on the appropriate
timing of the Rule 26(a) disclosures. Plaintiff is again encouraged to review the District
of Kansas Local Rules and Federal Rules related to scheduling and discovery.
Discovery will be permitted according to those rules, after the defendants have had the
opportunity to respond to the Complaint.
In light of the above, Plaintiff’s motion for the Court to accept his exhibit list is
DENIED without prejudice.
IT IS THEREFORE ORDERED that Plaintiff’s motions (ECF Nos. 3, 4, 5, 6, 9,
10, and 11) are DENIED as set forth above.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 7th day of September 2017.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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