Rahab v. Freeman et al

Filing 16

MEMORANDUM AND ORDER granting 3 Plaintiff's Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. The Clerk is directed to stay service of process pending the District Court's review of the Report and Recommendation filed simultaneously herein (Doc. 17). See Memorandum and Order for details. Signed by Magistrate Judge Karen M. Humphreys on 5/20/15.Mailed to pro se party Othman A. Rahab by regular mail. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

OTHMAN A. RAHAB
aka OTHEL GRAY, JR.,
Plaintiff,
v.
JESSICA FREEMAN and
AMERICAN CAB CO.,
Defendants.

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Case No. 15-1138-MLB

MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s Motion to Proceed without
Prepayment of Fees (Doc. 3) and plaintiff’s Motion for Appointment of Counsel (Doc. 4).
For the reasons outlined below, plaintiff’s Motion to Proceed without Prepayment of Fees
(Doc. 3) is GRANTED and his Motion for Appointment of Counsel (Doc. 4) is DENIED.

I.

Motion to Proceed In Forma Pauperis (Doc. 3)
On April 30, 2015, plaintiff filed a Motion to Proceed without Prepayment of Fees

(Doc. 3) and later filed two Supplements to that motion (Docs. 5, 7, 8). The court has
reviewed the affidavit of financial status and the supplements and finds that plaintiff has
established that he is financially unable to pay the costs of the filing fee. Therefore,
plaintiff’s motion (Doc. 3) is GRANTED.

II.

Motion for Appointment of Counsel (Doc. 4)
An evaluation of whether to appoint counsel requires consideration of those

factors discussed by the Tenth Circuit Court of Appeals in Castner v. Colorado Springs
Cablevision,1 including: (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. Thoughtful and prudent care in
appointing representation is necessary so that willing counsel may be located; however,
the indiscriminate appointment of volunteer counsel to undeserving claims wastes a
precious resource and may discourage attorneys from volunteering their time.2
After careful consideration, the court declines to appoint counsel to represent
plaintiff. Although plaintiff appears unable to afford counsel at this time, the court
recommends dismissal of plaintiff’s claims in the Report and Recommendation filed
contemporaneously with this Order.

Under the circumstances, the motion for

appointment of counsel shall be DENIED.

IT IS THEREFORE ORDERED that plaintiff’s Motion to Proceed without
Prepayment of Fees (Doc. 3) is GRANTED. The Clerk is directed to stay service of
process pending the District Court’s review of the Report and Recommendation filed
simultaneously herein (Doc. 17).3

1

979 F.2d 1417, 1420-21 (10th Cir. 1992).
Id. at 1421.
3
See Webb v. Vratil, No. 12-2588-EFM-GLR, Doc. 7 (Sept. 28, 2012) (withholding service of
process pending review under 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3)) (citing
Fuller v. Myers, 123 F. App’x 365, 368 (10th Cir. 2005).
2

2

IT IS FURTHER ORDERED that plaintiff’s application for appointment of
counsel (Doc. 4) is DENIED.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 20th day of May 2015.

s/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge

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