Blue et al v. Farm, Inc., The et al

Filing 5

MEMORANDUM AND ORDER denying 4 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 4/23/2013.Mailed to pro se party Anita Blue, Nicholas Blue by certified mail. (df) Modified on 4/23/2013 to add Plaintiff name for service (alm).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANITA K. BLUE,
NICHOLAS BLUE,

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Plaintiffs, )
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vs.
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T.F.I., THE FARM INC. et al.,
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Defendants. )
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Case No. 13-1132-JTM-KGG

REPORT & RECOMMENDATION ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND
ORDER ON MOTION FOR APPOINTMENT OF COUNSEL
In conjunction with their federal court Complaint alleging a violation of
Plaintiff Anita Blue’s Constitutional due process and equal protection rights as
well as a violation of the Americans With Disabilities Act on behalf of Plaintiff
Nicholas Blue, Plaintiffs have filed a Motion to Proceed Without Prepayment of
Fees (IFP Application, Doc. 3, sealed), with an accompanying Affidavit of
Financial Status (Doc. 3-1). They also have filed a Motion for Appointment of
Counsel. (Doc. 4.) Having reviewed Plaintiffs’ motions, as well as their
Complaint (Doc. 1), the Court is prepared to rule.
I.

Motion to Proceed In Forma Pauperis
Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of

an action without prepayment of fees, costs, etc., by a person who lacks financial
means. 28 U.S.C. § 1915(a). In so doing, the court considers the affidavit of
financial status included with the application. See id.
There is a liberal policy toward permitting proceedings in forma pauperis
when necessary to ensure that the courts are available to all citizens, not just those
who can afford to pay. See generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir.
1987). In construing the application and affidavit, courts generally seek to
compare an applicant’s monthly expenses to monthly income. See Patillo v. N.
Am. Van Lines, Inc., No. 02-2162, 2002 WL 1162684, at *1 (D.Kan. Apr. 15,
2002); Webb v. Cessna Aircraft, No. 00-2229, 2000 WL 1025575, at *1 (D.Kan.
July 17, 2000) (denying motion because “Plaintiff is employed, with monthly
income exceeding her monthly expenses by approximately $600.00”).
Although there are two named Plaintiffs, a supporting financial affidavit has
been submitted for only one of them, Anita Blue. Based on information contained
in the Complaint, however, the Court surmises that the second named Plaintiff,
Nicholas Blue, is Plaintiff’s adult son who has been diagnosed with autism.
Although he is not listed as Plaintiff’s dependent, for purposes of this motion the
Court will assume that he does not contribute to the household income in any
significant manner.
2

In her supporting financial affidavit, Plaintiff indicates she is 52-years-old
and single. (Doc. 3-1, at 1, 2.) She is currently unemployed but previously
worked for the City of Wichita as a bus driver and receptionist. (Id., at 3.) She
lists Social Security Disability as her only income. (Id., at 5.) She does not own
an automobile or real property, but pays a modest amount in monthly rent for her
home. She lists no typical monthly expenses such as utilities, insurance, or
groceries but does enumerate certain consumer debts requiring monthly payment.
(Id., at 5-6.) She has not filed for bankruptcy and indicates no cash on hand. (Id.,
at 4, 6.)
Considering all of the information contained in the financial affidavit,
Plaintiff has not established that her access to the Courts would otherwise be
seriously impaired if she is not granted IFP status. Her monthly income from
Social Security exceeds her stated monthly expenses by almost $600.00 dollars.
Under these circumstances, the undersigned Magistrate Judge recommends that
Plaintiff’s motion for IFP status be DENIED.1
II.

Motion for Appointment of Counsel.
1

A United States Magistrate Judge, on a plaintiff's motion to proceed in forma
pauperis, should issue a report and recommendation as to whether the plaintiff is entitled
to IFP status, rather than denying motion outright, since denial would be the functional
equivalent of involuntary dismissal. Lister v. Department of Treasury, 408 F.3d 1309,
1311-12 (10th Cir. 2005).
3

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.
The Court is satisfied that Plaintiffs diligently searched for counsel. (See
Doc. 4.) Although the Court does not recommend that Plaintiffs be granted IFP
status, as discussed in § I, above, the Court finds that Plaintiffs could not otherwise
afford counsel, satisfying the second Castner factor. As for the merits of
Plaintiffs’ claims, the third Castner factor, the Court identifies no concerns on the
face of Plaintiff’s federal court Complaint that would cause the Court to determine
Plaintiff’s claims to be without merit in their entirety. (Doc. 1.)
4

In considering the final Castner factor – Plaintiffs’ capacity to represent
themselves – the Court must look to the complexity of the legal issues and
Plaintiff’s ability to gather and present crucial facts. 979 F.2d 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”).
Although there is a reference to Nicholas Blue’s potential autism in the
Complaint, Plaintiffs have provided the Court with no specific information in that
regard. Further, the Court sees no basis to distinguish Plaintiff Anita Blue from the
many other untrained individuals who represent themselves pro se in Courts
throughout the United States on any given day. Further, although Ms. Blue is not
trained as an attorney, and while an attorney might present the case more
effectively, this fact alone does not warrant appointment of counsel. As such, his
Motion to Appoint Counsel is DENIED.
IT IS THEREFORE RECOMMENDED to the District Court that
Plaintiffs’ motion for IFP status (Doc. 3, sealed) be DENIED.
IT IS ORDERED that Plaintiffs’ Motion for Appointment of Counsel (Doc.
5

4) is DENIED.
IT IS THEREFORE ORDERED that a copy of the recommendation shall
be sent to Plaintiff via certified mail. Pursuant to 28 U.S.C. §636(b)(1),
Fed.R.Civ.P. 72, and D.Kan. Rule 72.1.4, Plaintiffs shall have 14 (fourteen) days
after service of a copy of these proposed findings and recommendations to serve
and file with the U.S. District Judge assigned to the case, any written objections to
the findings of fact, conclusions of law, or recommendations of the undersigned
Magistrate Judge. Plaintiffs’ failure to file such written, specific objections within
the 14-day period will bar appellate review of the proposed findings of fact,
conclusions of law, and the recommended disposition.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 23rd day of April, 2013.
S/ KENNETH G . GALE

KENNETH G. GALE
United States Magistrate Judge

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