Wright v. Genesh Inc., et al.
MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 10/6/14. Mailed to pro se party Josie T. Wright by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSIE T. WRIGHT,
Case No. 14-1319-DDC-KGG
MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND MOTION FOR APPOINTMENT OF COUNSEL
In conjunction with her federal court Complaint alleging sexual harassment,
Plaintiff Josie T. Wright 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.
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 39 years old
and single. (Doc. 3-1, at 1.) She lists two minor children, neither of whom live
with her and for whom she currently does not provide financial support. (Id., at 2.)
She is employed and receives a modest monthly wage. She also lists an amount
received from Social Security as well as a small amount from “other gov’t sources”
over the past 12 months. (Id., at 4-5.)
Plaintiff does not own real property, but does have a modest automobile on
which she owes a significant monthly payment. (Id., at 3-4.) She indicates no cash
on hand. (Id., at 4.) She pays a modest amount in monthly rent and enumerates
reasonable monthly expenses, including groceries, gas, and telephone. (Id., at 5.)
She has not filed for bankruptcy. (Id., at 6.)
Considering all of the information contained in the financial affidavit,
Plaintiff has reasonable monthly expenses and financial obligations with only a
modest amount of income, which is not enough to cover her monthly expenses.
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.
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
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. While Plaintiff
has not contacted the number of attorneys required in her motion to appoint
counsel (See Doc. 4), the Court will not resolve this motion based on the second
Castner factor. The Court sees no basis to recommend dismissal to the District
Court on the face of Plaintiff’s federal court Complaint, satisfying the third factor.
(Doc. 1.) The Court thus addresses the fourth 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 employment sexual harassment
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”).
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 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 (Doc. 4) 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.
Dated at Wichita, Kansas, on this 6th day of October, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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