Voth vs. USD 259

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. The Clerks office shall proceed to issue summons in this case. Signed by Magistrate Judge Kenneth G. Gale on 2/13/2014.Mailed to pro se party Rhonda Kay Voth by regular mail (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RHONDA KAY VOTH,

)
)
Plaintiff,
)
)
vs.
)
)
USD 259 WICHITA PUBLIC SCHOOLS, )
)
Defendant.
)
)

Case No. 13-1470-JTM-KGG

ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND MOTION FOR APPOINTMENT OF COUNSEL
In conjunction with her federal court Complaint alleging violations of the
Americans with Disabilities Act, Plaintiff Rhonda Kay Voth has filed a Motion to
Proceed Without Prepayment of Fees (IFP Application, Doc. 3, sealed), with an
accompanying Affidavit of Financial Status (Doc. 3-1, sealed). She also has filed a
Motion for Appointment of Counsel. (Doc. 4.) Having reviewed Plaintiff’s
motions, as well as her 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”).
In her supporting financial affidavit, Plaintiff indicates she is 58 years old
and single. (Doc. 3-1, at 1.) She lists no dependents. (Id., at 2.) She is not
currently employed, but was most recently employed by Defendant as a human
resources records assistant. (Id., at 3.) She lists no monthly income other than
food stamps. (Id., at 4.) She does, however, indicate that “disability CUNA” is
making her monthly car payment. (Id.) She does not indicate how much this
payment is or whether she receives any additional payments or assistance from this
organization.
Plaintiff does not own real property, but does own a modest automobile,
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mentioned above. (Id., at 3-4.) She indicates no cash on hand. (Id., at 4.) She
enumerates reasonable monthly expenses, including groceries, rent, gas, telephone,
and car insurance. (Id., at 5.) She also has numerous, significant, other monthly
expenses and consumer debt. (Id.) She previously filed for bankruptcy in 1993.
(Id., at 6.)
Considering all of the information contained in the financial affidavit,
Plaintiff has reasonable monthly expenses which exceed her limited income. Thus,
the Court finds Plaintiff has established that she is entitled to file this action
without payment of fees and costs. The Court GRANTS Plaintiff leave to proceed
in forma pauperis and directs that this case be filed without payment of a filing fee.

II.

Motion for Appointment of Counsel.
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
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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.
Having granted Plaintiff IFP status, supra, the Court finds that she has a
limited ability to afford counsel, satisfying the first Castner factor. Plaintiff has
been diligent in her search for counsel, establishing the second Castner factor.
(See Doc. 4, 2-3.) The Court sees no glaring concerns on the face of Plaintiff’s
federal court Complaint, satisfying the third factor. (Doc. 1.)
The Court now addresses the fourth Castner factor – Plaintiff’s capacity to
represent himself. 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 employment discrimination 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”).
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The Court sees no basis to distinguish Plaintiff from the many other
untrained individuals who represent themselves pro se on various types of claims
in Courts throughout the United States on any given day. To the contrary, Plaintiff
has shown her ability to represent himself by navigating the administrative agency
charging procedure and drafting her 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 Motion to Proceed
Without Prepayment of Fees (Doc. 3, sealed) is GRANTED.
IT IS FURTHER ORDERED that the Clerk’s office shall proceed to issue
summons in this case.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Doc. 4) is DENIED.
IT IS SO ORDERED.

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Dated at Wichita, Kansas, on this 13th day of February, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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