Barnes v. Daskalova

Filing 6

ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. The clerk of the court is directed to stay service of process pending the District Court's review of the Report and Recommendation filed simultaneously herein (ECF No. 7). Signed by Magistrate Judge Gwynne E. Birzer on 4/27/21. Mailed to pro se party DyJuan D. Barnes by certified mail; tracking #7020 0640 0000 5372 9649. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DYJUAN D. BARNES,
Plaintiff,
v.
GERGANA DASKALOVA
aka MS. GI GI,
Defendant.

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Case No. 21-1009-HLT-GEB

ORDER
This matter is before the Court on Plaintiff’s Motion to Proceed without
Prepayment of Fees (ECF No. 3) and his Motion for Appointment of Counsel (ECF No.
4). For the reasons outlined below, Plaintiff’s Motion to Proceed without Prepayment of
Fees (ECF No. 3) is GRANTED and his Motion for Appointment of Counsel (ECF No.
4) is DENIED.
I.

Motion to Proceed In Forma Pauperis (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
otherwise.’”2 To determine whether a party is eligible to file without prepayment of the
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)).
2
Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).

fee, the Court commonly reviews the party’s financial affidavit and compares his or her
monthly expenses with the monthly income disclosed therein.3
Both the Tenth Circuit Court of Appeals and this Court have a liberal policy
toward permitting proceedings in forma pauperis.4 Plaintiff is unemployed, and although
his wife is apparently employed, their household income does not exceed their monthly
expenses. After careful review of Plaintiff’s affidavit of financial resources (ECF No. 31, sealed) and supplemental motion and affidavit (ECF No. 11), the Court finds he 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 Plaintiff proceeds in forma
pauperis, the clerk of the court is directed to stay service of process pending the District
Court’s review of the Report and Recommendation filed simultaneously herein (ECF No.
7).5

3

Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, at *1 (D. Kan. Aug.
9, 2007) (citing Patillo v. N. Am. Van Lines, Inc., No. 02-2162-JWL-DJW, 2000 WL 1162684, at
*1) (D. Kan. Apr. 15, 2002) and Webb v. Cessna Aircraft, No. 00-2229-JWL-DJW, 2000 WL
1025575, at *1 (D. Kan. July 17, 2000)).
4
Mitchell v. Deseret Health Care Facility, No. 13-1360-RDR-KGG, 2013 WL 5797609, at *1
(D. Kan. Sept. 30, 2013) (citing, generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987)).
5
See Webb v. Vratil, No. 12-2588-EFM-GLR, ECF No. 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)).

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II.

Motion for Appointment of Counsel (ECF No. 4)
Parties who are permitted to proceed in forma pauperis are subject to 28 U.S.C. §

1915(e)(1), which provides discretionary authority for the Court to “request an attorney
to represent any person unable to afford counsel.”6 There is no constitutional right to
counsel in a civil action.7 In its broad discretion, the Court evaluates multiple factors
when deciding whether to request an attorney for an indigent party.8 In Castner v.
Colorado Springs Cablevision,9 the Tenth Circuit identified four factors which are
relevant to the district court’s decision whether to appoint counsel: (1) the plaintiff’s
ability to afford counsel; (2) the plaintiff’s diligence in searching for counsel; (3) the
merits of the plaintiff’s case; and (4) the plaintiff’s capacity to prepare and present the
case without the aid of counsel. Additionally, the law requires a plaintiff to state a viable
claim for relief and the court must have subject matter jurisdiction over that claim.
Thoughtful and prudent care in appointing representation is necessary so willing
counsel may be located,10 but consideration of the Court’s growing docket, the increase
in pro se filings, and the limited number of attorneys willing to accept appointment is also
paramount.11

6

28 U.S.C. § 1915(e)(1); Jackson v. Park Place Condominiums Ass'n, Inc., No. 13-2626-CMGLR, 2014 WL 494789, at *1 (D. Kan. Feb. 6, 2014).
7
See Sandle v. Principi, 201 F. App'x 579, 582 (10th Cir. 2006) (citing Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992) (Title VII case); Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989) (civil case)).
8
Jackson, 2014 WL 494789, at *1.
9
979 F.2d 1417, 1420-21 (10th Cir. 1992).
10
Castner, 979 F.2d at 1421.
11
Jackson, 2014 WL 494789, at *3.

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After careful consideration, the Court declines to appoint counsel to represent
Plaintiff for the following reasons. Plaintiff satisfies the first prong of the Castner
analysis—his inability to afford counsel—through his financial affidavit provided with
his motion to proceed in forma pauperis, granted above. But it is questionable whether
Plaintiff satisfies the second prong of the analysis—diligence in searching for counsel.
His second motion includes the names and contact information for twelve different law
firms Plaintiff appears to have emailed or called. However, Plaintiff failed to demonstrate
he conferred with any of those attorneys as required by putting forth any further
communication other than a simple outgoing email. Additionally, many of the attorneys
contacted are high-profile personalities located in other states, which supports the wellreasoned conclusion that Plaintiff did not reasonably under the circumstances satisfy the
requirement to confer with attorneys about his case.12 This Court has an obligation to
counsel who are willing to take appointments not to make indiscriminate appointments on
every occasion that a plaintiff seeks court-ordered counsel.13
Additionally, the Court has serious concerns regarding its ability to adjudicate
Plaintiff’s claims, as explained in the Report and Recommendation (ECF No. 7) filed
simultaneously with this order. In the Report, the Court recommends this case be
dismissed due to Plaintiff’s failure to state a claim upon which relief may be granted and
this Court’s lack of subject matter jurisdiction over his claims. Under the circumstances,
the motion for appointment of counsel shall be denied.
See Wheeler v. Wichita Police Dept., No. 97-1076-FGT, WL 109694, at 2 (D. Kan. 1997).
(holding that plaintiff must actually make an effort to ascertain whether an attorney will take a
case, mere pretense of contact is not enough)
13
Id. at 2.
12

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of
Counsel (ECF No. 4) is DENIED.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 27th day of April 2021.

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

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