Puckett v. Wieland
MEMORANDUM AND ORDER denying 16 "Motion for Reconsideration for Appointment of Counsel." Signed by Magistrate Judge Kenneth G. Gale on 8/11/17. Mailed to pro se party Casey Puckett by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-1072-JTM-KGG
MEMORANDUM & ORDER ON
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff’s federal court Complaint brings various claims against Defendant
deriving from Plaintiff’s allegation that Defendant “is demanding a price fix on the
product ‘bankruptcy petition preparing’,” which Plaintiff contends violates federal
law and his Constitutional rights. (Doc. 3, sealed, at 1; see generally, Doc. 1.) In
conjunction therewith, Plaintiff filed a motion requesting, and was granted, the
right to file his case in forma pauperis. (Doc. 3, motion; Doc. 6, Memorandum &
Currently pending before the Court is Plaintiff’s “Motion for
Reconsideration for Appointment of Counsel.” (Doc. 16.) Plaintiff has not,
however, previously filed a Motion for Appointment of Counsel. The Court is,
therefore, unsure as to why Plaintiff has styled his current motion as a motion for
reconsideration. Regardless, the Court considers this motion as Plaintiff’s request
for appointment of counsel. Having reviewed this motion, as well as other
substantive filings in this case, the Court DENIES the request for appointment of
counsel (Doc. 16).
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 has previously granted Plaintiff in forma pauperis status.
(See Doc. 6; see also Doc. 3-1, financial affidavit.) Considering all of the
information contained in Plaintiff’s previously submitted financial affidavit, the
Court is satisfied that he is unable to afford counsel. The applicant’s financial
means is not, however, dispositive of the issue of appointment of counsel. As
such, the Court will analyze the remaining elements.
Next is Plaintiff’s diligence in searching for counsel. The form motion
provided by the Court for individuals requesting counsel clearly indicates that
applicants are to “confer with (not merely contact)” at least five attorneys
regarding legal representation prior to filing the motion. The form provides space
for the name, address, date(s) of contact, method of contact, and response received
for six attorneys. Plaintiff did not, however, use the Court’s form motion. His
submission does not indicate whether he has conferred with the requisite number of
attorneys. (See generally, Doc. 16.)
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. The Court notes that there are
concerns regarding the viability of Plaintiff’s claims, as evidenced by the Motion
to Dismiss filed by Defendant and currently pending before the District Court.
(Doc. 13.) Because this dispositive motion will be decided by the District Court,
the undersigned Magistrate Judge will not opine as to the merits of Plaintiff’s
claims at this time. Rather, the analysis will 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. To the contrary, Plaintiff
has shown the ability for self-representation by drafting his detailed federal court
Complaint and various other motions and submissions. (See generally, Docs. 1, 3,
4, 10, 15, 16.) Further, Plaintiff’s business is legal in nature. Although he 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.
The Court therefore finds that Plaintiff appears to be an articulate individual
with the ability to gather and present facts crucial to this case. As such, the
“Motion for Reconsideration for Appointment of Counsel” (Doc. 16) is DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion for
Reconsideration for Appointment of Counsel” (Doc. 16) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 11th day of August, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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