Wilson v. Oklahoma, State of et al

Filing 7

ORDER granting 3 Plaintiff's Motion for Leave to Proceed in forma pauperis; denying 4 Plaintiff's Motion to Appoint Counsel. The clerk of court is directed to stay service of process pending the District Court's review of the Report and Recommendation filed herein. Signed by Magistrate Judge Gwynne E. Birzer on 9/18/17. Mailed to pro se party Christina Lynnae Wilson by certified mail; Certified Tracking Number: 7012 1640 0000 9096 6326. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRISTINA LYNNAE WILSON,
Plaintiff,
v.
STATE OF OKLAHOMA, et al.,
Defendants.

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Case No. 17-1195-JTM-GEB

ORDER
This matter is before the Court on Plaintiff Christina Lynnae Wilson’s Motion to
Proceed without Prepayment of Fees (ECF No. 3, sealed), and her Motion for
Appointment of Counsel (ECF No. 4). For the reasons set forth below, Plaintiff’s Motion
to proceed in forma pauperis (ECF No. 3) is GRANTED and her Motion for
Appointment of Counsel (ECF No. 4) is DENIED.

I.

Motion to Proceed Without Payment of Fees (ECF No. 3)
Under 28 U.S.C. § 1915(a), the Court has the discretion1 to authorize the filing of

a civil case “without prepayment of fees or security thereof, by a person who submits an
affidavit that . . . the person is unable to pay such fees or give security thereof.”
“Proceeding in forma pauperis in a civil case ‘is a privilege, not a right—fundamental or

1

Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26,
2000) (citing Cabrera v. Horgas, 173 F.3d 863, at *1 (10th Cir. April 23, 1999)).

otherwise.’”2 After careful review of Plaintiff’s motion (ECF No. 3, sealed) and her
affidavit of financial resources (ECF No. 3-1, sealed), and the comparison of her monthly
income to her monthly expenses, the Court finds she is financially unable to pay the filing
fee.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed without
Prepayment of Fees (ECF No. 3) is GRANTED. Although service of process would
normally be undertaken by the clerk of court under 28 U.S.C. § 1915(d) and Fed. R. Civ.
P. 4(c)(3), the clerk is directed to stay service of process pending the District Court’s
review of the Report and Recommendation filed simultaneously herein (ECF No. 8).3

II.

Motion for Appointment of Counsel (ECF No. 4)
There is no constitutional right to counsel in a civil action such as this one.4 Some

statutes, however, provide the court with discretion to appoint counsel for a civil litigant.
For example, both the Americans with Disabilities Act, 42 U.S.C. § 12117(a), and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5(f)(1), provide discretionary
authority for appointing counsel “in such circumstances as the court may deem just.”5 If

2

Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
See Webb v. Vratil, No. 12-2588-EFM-GLR, ECF No. 7 (D. Kan. 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)).
4
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).
5
Rand v. Wolf Creek Nuclear Operating Corp., No. 11-4136-KHV-GLR, 2012 WL 1154509, at
*2 (D. Kan. Apr. 5, 2012) (discussing appointment of counsel under the ADA); Nelson v. Boeing
Co., 446 F.3d 1118, 1120 (10th Cir. 2006) (discussing appointment of counsel under Title VII,
and noting “Title VII grants litigants a statutory right to request appointed counsel at court
expense”).
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a plaintiff sues under a statute which provides no authority for appointment of counsel,
general authority for requesting counsel under 28 U.S.C. § 1915(e)(1) may govern.6
Under 28 U.S.C. § 1915(e)(1), in its discretion, the “court may request an attorney
to represent any person unable to afford counsel.”7 When evaluating whether to appoint
counsel, the court considers multiple factors, including (1) the merits of the litigant’s
claims, (2) the nature of the factual issues raised in the claims, (3) the litigant’s ability to
present his claims, and (4) the complexity of the legal issues raised by the claims. 8 The
court also considers the movant’s diligence in attempting to secure counsel. 9 Thoughtful
and prudent care in appointing representation is necessary so that willing counsel may be
located.10 The court has an obligation not to make indiscriminate appointments on every
occasion that a plaintiff seeks court-ordered counsel,11 particularly in light of the
expanding federal court dockets, increased filings by pro se parties, and decreasing
number of attorneys willing to accept appointments.12
The Court is satisfied that Plaintiff is unable to afford counsel, as evidenced in her
motion and financial affidavit (ECF No. 3) discussed in Section I. Therefore, the Court
6

Rand, 2012 WL 1154509, at *2.
Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (a district “court has discretion to
request an attorney to represent a litigant who is proceeding in forma pauperis” under 28 U.S.C.
§ 1915(e)(1)).
8
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). See also Castner v. Colorado
Springs Cablevision, 979 F.2d 1417, 1420-21 (10th Cir. 1992) (applying similar factors in the
context of a request for counsel in an employment discrimination case under 42 U.S.C. 2000(e)–
5 and 28 U.S.C. § 1915).
9
Adkins v. Kansas Comm'n on Judicial Qualifications, No. 11-4109-SAC-KGS, 2011 WL
13133967, at *1 (D. Kan. Sept. 22, 2011) (citing Castner, 979 F.2d at 1420).
10
Castner, 979 F.2d at 1421.
11
Wheeler v. Wichita Police Dept., No. 97-1076-FGT, 1997 WL 109694, at *2 (D. Kan. Feb. 27,
1997).
12
See Sause v. Louisburg Police Dept., No. 15-9633-JAR-TJJ, ECF No. 16 (D. Kan. Jan. 6,
2016).
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possesses the authority under 28 U.S.C. § 1915(e)(1) to request an attorney to assist her,
after evaluating the factors outlined above.
After careful consideration of those factors, however, the Court declines to appoint
counsel to represent Plaintiff.

First, she failed to demonstrate diligence in seeking

counsel on her own, as required by both the Tenth Circuit and this Court. “Although not
required to ‘exhaust the legal directory,’ a plaintiff must demonstrate that he or she has
made a ‘reasonably diligent effort under the circumstances to obtain counsel.’”13 In the
District of Kansas, a party is typically required to first contact at least five attorneys to
determine whether they would represent her, before filing a motion seeking appointed
counsel.14

Although the Court’s form “Motion for Appointment of Counsel and

Declaration of Good Faith Efforts to Obtain Counsel” makes this requirement clear, Ms.
Wilson left that part of her motion blank.
In addition to her failure to demonstrate diligence, the Court has serious concerns
regarding its ability to adjudicate Plaintiff’s claims. Simultaneously with this order, the
Court recommends this case be dismissed under 28 U.S.C. 1915(e)(2)(B) for failing to
state a claim which supports either venue or personal jurisdiction (ECF No. 8). Under the
circumstances, the request for appointment of counsel shall be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of
Counsel (ECF No. 4) is DENIED.

13

Castner, 979 F.2d at 1422 (quoting Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th
Cir. 1977) and Bradshaw v. Zoological Soc'y, 662 F.2d 1301, 1319 (9th Cir. 1981)).
14
Adkins, 2011 WL 13133967, at *1 (citing Sommerville v. Republic Cnty. Hosp., No. 10-4119KHV-DJW, 2010 WL 5172995, at *1 (D. Kan. Dec. 14, 2010)).
4

IT IS SO ORDERED.
Dated at Wichita, Kansas this 18th day of September 2017.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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