Nyanjom v. Hawker Beechcraft Corp.

Filing 34

MEMORANDUM AND ORDER denying 28 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 7/17/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HAROLD M. NYANJOM,

)
)
Plaintiff,
)
)
vs.
)
)
HAWKER BEECHCRAFT, INC.,
)
)
Defendant. )
)

Case No. 12-1461-JAR-KGG

ORDER ON MOTION FOR APPOINTMENT OF COUNSEL
In conjunction with his federal court Complaint alleging employment
discrimination (Doc. 2)1, Plaintiff Harold M. Nyanjom filed a Motion to Proceed
Without Prepayment of Fees (IFP Application, Doc. 1, sealed). The undersigned
Magistrate Judge found that Plaintiff adequately established that he is entitled to
file this action without payment of fees and costs, and granted him leave to proceed
in forma pauperis. (Doc. 10.)
This case was subsequently subject to a stay pending resolution of the
bankruptcy of Defendant Hawker Beechcraft Corp. (Doc. 12, text entry.) That
bankruptcy stay has recently been lifted, allowing Plaintiff to pursue the claims in
this action. (Doc. 30, text entry). This matter comes before the Court on
1

Plaintiff initially filed this matter in the United States District Court for the
Southern District of New York. (See Doc. 2.) The matter was subsequently transferred to
the District of Kansas, after a determination that this was the proper venue.

Plaintiff’s Motion to Appoint Counsel (Doc. 28), which the Court will now
address.
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.
By granting Plaintiff’s request for IFP status, the Court acknowledges he
cannot afford counsel, establishing the first Castner factor. (See Doc. 10.) In
regard to the second Castner factor, Plaintiff does not include the necessary list of
attorneys he has contacted. In the other case Plaintiff brought against this
Defendant (hereinafter “companion case”), he attached correspondence from
2

numerous attorneys (who have chosen not to represent him), constructively
establishing that he has searched for counsel. (See e.g., No. 12-1438-JTM-KGG,
Doc. 4, at 2-12.) Given the finding of “reasonable cause to believe that a violation
of the law has occurred” made by the EEOC (Doc. 2, at 7-8), the Court does not
see any facial deficiencies regarding the merits of Plaintiff’s claims. Thus, the
third Castner factor is not implicated.
In considering the final Castner factor, Plaintiff’s capacity to represent
himself, 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 employment discrimination case are not unusually
complex. See 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”).
In the companion case, the undersigned Magistrate Judge initially denied
Plaintiff’s request for counsel. (No. 12-1438-JTM-KGG, Doc. 6.) Upon request
for reconsideration, the Court granted Plaintiff’s request because of Plaintiff’s
blindness combined with legal complications posed by Defendant’s bankruptcy.
(See No. 12-1438-JTM-KGG, Doc. 13.) The Court specifically stated, however,
3

that Plaintiff’s blindness did not entitle him to counsel.
Plaintiff has now informed the Court that he is blind.
(Doc. 9, at 1.) This obviously complicates his ability to
conduct the necessary legal research and serves as a basis
to distinguish Plaintiff from other pro se litigants. The
Court is not finding that Plaintiff’s blindness, in and of
itself, entitles him to appointment of counsel. Rather, the
Court has various types of assistance available for
litigants with disabilities. Taken in conjunction with
Defendant’s bankruptcy, however, the Court finds that
the appointment of counsel in this matter is appropriate.
(Doc. 13, at 3.)2
In the matter currently before the Court, a Bankruptcy Stipulation has been
entered, allowing Plaintiff to pursue this cause of action. (Doc. 29.) As such, the
legal complications caused by a pending bankruptcy are no longer a consideration
in this case. The Court therefore finds that Plaintiff’s request for counsel should be
DENIED. 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. Further, Plaintiff has proven that he is an articulate
individual, capable of presenting facts and legal argument in support of his claims.
(See generally Doc. 31.)
2

The Court notes that this Memorandum and Order was almost immediately
withdrawn by the Undersigned Magistrate, constructively denying Plaintiff’s request for
counsel, in light of the District Court’s subsequent Order to Show Cause indicating that
the Chapter 11 Reorganization Plan entered by the Bankruptcy Court enjoined and
precluded Plaintiff from continuing with that case. (No. 12-1438-JTM-KGG, at 14.)
4

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Appoint
Counsel (Doc. 31) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 17th day of July, 2013.
S/ KENNETH G . GALE

KENNETH G. GALE
United States Magistrate Judge

5