Smith v. Via Christi
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 10/18/17. Mailed to pro se party Gretta E. Smith by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GRETTA E. SMITH,
VIA CHRISTI, et al.,
Case No. 17-1270-EFM-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 and retaliation in her employment, Plaintiff Gretta E. Smith 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), and
a Motion to Appoint Counsel (Doc. 4). Having reviewed Plaintiff’s motions, as
well as her financial affidavit and Complaint, the Court GRANTS Plaintiff’s
motion for IFP status (Doc. 3) but DENIES her request for counsel (Doc. 4).
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 50 years old
and single with no dependents. (Doc. 3-1, sealed, at 1-2.) Plaintiff is currently
unemployed and lists prior employment as a home health aide. (Id., at 3.) She lists
a small amount of unemployment benefits, but no other government assistance or
income. (Id., at 4-5.)
Plaintiff indicates there is a home in her name, but she says her “common
law boyfriend” kept the house because she could not afford it. (Id., at 3.) She
currently lives with her daughter and is not paying rent or other monthly bills. (Id.,
at 5.) She states that her automobile was repossessed. (Id., at 4.) She lists no cash
on hand or bank accounts. (Id., at 4.) As for whether she has filed for bankruptcy,
Plaintiff indicates she is “currently in one.” (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 case be filed without payment of a filing fee.
Motion to Appoint Counsel.
Plaintiff has also filed a motion requesting the appointment of counsel.
(Doc. 4.) As an initial matter, the Court notes that there is no constitutional right to
have counsel appointed in civil cases such as this one. Beaudry v. Corr. Corp. of
Am., 331 F.3d 1164, 1169 (10th Cir. 2003). “[A] district court has discretion to
request counsel to represent an indigent party in a civil case” pursuant to 28 U.S.C.
§ 1915(e)(1). Commodity Futures Trading Comm’n v. Brockbank, 316 F. App’x
707, 712 (10th Cir. 2008). The decision whether to appoint counsel “is left to the
sound discretion of the district court.” Lyons v. Kyner, 367 F. App’x 878, n.9
(10th Cir. 2010) (citation omitted).
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 in Section I., above, Plaintiff’s financial situation would make
it impossible for her to afford counsel. The second factor is Plaintiff’s diligence in
searching for counsel. Based on the information contained in the form motion,
Plaintiff has been diligent, but unsuccessful, in her attempt to secure legal
representation. (Doc. 4.) As for the next factor, the Court has no immediate
concerns with the merits of Plaintiff’s case for purposes of this motion. See
McCarthy, 753 F.2d at 838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. The
Court’s analysis thus turns to the final factor, Plaintiff’s capacity to prepare and
present the case without the aid of counsel. Castner, 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. Although Plaintiff 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, the
Motion to Appoint Counsel (Doc. 4, sealed) is DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status
(Doc. 3) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel
(Doc. 4) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 18th day of October, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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