Spires v. Boot Barn/Sheplers
MEMORANDUM AND ORDER denying 3 Motion to Appoint Counsel; granting 2 Motion for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Kenneth G. Gale on 1/27/17. Mailed to pro se party Gerri Lynn Spires by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GERRI LYNN SPIRES,
Case No. 17-1016-JTM-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 racial
discrimination in her employment, Plaintiff Gerri Lynn Spires has filed a Motion to
Proceed Without Prepayment of Fees (IFP Application, Doc. 2, sealed), with an
accompanying Affidavit of Financial Status (Doc. 2-1, sealed), and a Motion to
Appoint Counsel (Doc. 3). Having reviewed Plaintiff’s motions, as well as her
financial affidavit and Complaint, the Court GRANTS Plaintiff’s motion for IFP
status (Doc. 2) but DENIES her request for counsel (Doc. 3).
Motion to Proceed Without Prepayment of Fees.
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 36 years old
and single with two dependents. (Doc. 2-1, sealed, at 1-2.) According to her
affidavit, however, she does not provide any monthly financial support for her
dependents. (Id., at 2.) Plaintiff is currently unemployed and lists a prior employer
other than Defendant in this case. She did receive a small amount of monthly
Welfare benefits for three months. (Id., at 4.)
Plaintiff does not own any real property, but does own a fairly new
automobile for which she owes a significant monthly payment. (Id., at 3, 4.) She
does not have am monthly rent payment, but does list grocery expense, her car
payment, and a sizeable monthly payment to “Capitol One Credit,” which the
Court surmises is a credit card. (Id., at 5, 6.) She lists no cash on hand or bank
accounts. (Id., at 4.) She has not filed for bankruptcy. (Id., at 6.)
Considering all of the information contained in the financial affidavit,
Plaintiff has established that her access to the Court would be significantly limited
absent the ability to file this action without payment of fees and costs. The Court
GRANTS Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) and
directs that the cases be filed without payment of a filing fee.
Motion to Appoint Counsel.
Plaintiff has also filed a motion requesting the appointment of counsel.
(Doc. 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.
As discussed above, Plaintiff’s financial situation would make it impossible
for her to afford counsel. The second Castner factor is Plaintiff’s diligence in
searching for counsel. The form motion used by Plaintiff clearly indicates that she
was to “confer with (not merely contact)” at least five attorneys regarding legal
representation prior to filing the motion. (Doc. 3, at 2 (emphasis in original).) The
form provides space for the name, address, date(s) of contact, method of contact,
and response received for six attorneys. Plaintiff has provided information for only
one attorney she has contacted.
Often in situations such as this, the Court will require a movant to confer
with, and provide the required information regarding, the requisite number of
attorneys before the Court will consider the application. The Court finds in this
instance, however, that the motion will be resolved on other factors. As such,
requiring Plaintiff to complete this task would not be useful.
The next factor is the merits of Plaintiff’s case. See McCarthy, 753 F.2d at
838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. For the purposes of this
motion, the Court does not find Plaintiff’s claims to be frivolous or futile. The
analysis will thus turn to the final Castner factor, Plaintiff’s capacity to prepare
and present the case without the aid of counsel. 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 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
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. Plaintiff has successfully
filed her federal court Complaint and navigated the EEOC charging process.
Although she is not trained as an attorney, and while an attorney might present this
case more effectively, this fact alone does not warrant appointment of counsel. As
such, Plaintiff’s Motion to Appoint Counsel (Doc. 3) is DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status
(Doc. 2) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel
(Doc. 3) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 27th day of January, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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