LaCost v. Social Security Administration, Commissioner of

Filing 5

MEMORANDUM AND ORDER granting #3 Motion for Leave to Proceed in forma pauperis. The Clerk shall issue summons to the US Marshal or Deputy Marshal, who are appointed pursuant to Fed.R.Civ.P. 4(c)(3). Plaintiff(s) or plaintiff(s) counsel directed to IMMEDIATELY prepare and submit summon(s) to the Clerk for service. It is further ordered that the #4 Motion to Appoint Counsel is denied. Signed by District Judge John W. Lungstrum on 03/31/2021.Mailed to pro se party Pamela Kay LaCost PO Box 4 201 N. Hill Kendall, KS 67857 by regular mail (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PAMELA KAY LACOST,

)
)
Plaintiff,
)
)
v.
)
)
ANDREW M. SAUL,
)
Commissioner of Social Security,
)
)
Defendant.
)
_______________________________________ )

CIVIL ACTION
No. 21-1083-JWL

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff=s “Motion to Proceed without
Prepayment of Fees” (Doc. 3) and “Motion for Appointment of Counsel and Declaration
of Good Faith Efforts to Obtain Counsel” (Doc. 4), filed contemporaneously with her
complaint in this case. In her Complaint, Plaintiff appears to seek judicial review
pursuant to 42 U.S.C. ' 405(g) of a decision of the Commissioner of the Social Security
Administration denying benefits. (Doc. 1).
After reviewing the Affidavit of Financial Status filled with Plaintiff’s Complaint,
the court finds that Plaintiff is unable to pay the fees in this case and will grant her
motion to proceed in forma pauperis in accordance with 28 U.S.C. § 1915(a).
Unlike a criminal case, a party in a civil case has no constitutional right to
appointment of counsel. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).

Pursuant to 28 U.S.C. ' 1915(e), the court may in its discretion appoint counsel in a civil
action to represent a person proceeding in forma pauperis who is unable to afford
counsel.

See Miller v. Glanz, 948 F.2d 1562, 1572 (10th Cir. 1991); 28 U.S.C.

' 1915(e) (AThe court may request an attorney to represent any person unable to afford
counsel.@); see also Ekis v. Comm=r of Soc. Sec., Civ. A. No. 96-2418-JWL, 1996 WL
633850 (D. Kan. Oct. 28, 1996) (applying 28 U.S.C. ' 1915(e) in a Social Security case).
In determining whether to appoint counsel, the district court should give careful
consideration to all the circumstances, including whether the plaintiff has a colorable
claim. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004); Rucks
v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). As the court in Hill noted, “‘The
burden is on the applicant to convince the court that there is sufficient merit to his claim
to warrant the appointment of counsel.’ McCarthy v. Weinberg, 753 F.2d 836, 838 (10th
Cir. 1985). ‘Only in those extreme cases where the lack of counsel results in
fundamental unfairness will the district court’s decision be overturned.’ Id. at 839” (a
prisoner with multiple sclerosis, diminished eyesight, hearing, and ability to
communicate who attended court in a wheelchair and needed to present complex medical
issues requiring expert opinion should have been appointed counsel).
If the court finds that the plaintiff has a colorable claim, the court should “consider
the nature of the factual issues raised in the claims and ability of the plaintiff to
investigate the crucial facts.” Rucks, 57 F.3d at 979. The court should consider the
following factors: (1) the merits of the litigant’s claims, (2) the nature of the factual
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issues raised in the claims, (3) the litigant’s ability to present her claims, and (4) the
complexity of the legal issues raised by the claims. Id.; Hill, 393 F.3d at 1115; Long v.
Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin v. Freake, 650 F.2d 885,
886 (7th Cir. 1981)). The court will also consider whether the plaintiff has made a
diligent attempt to secure counsel through her own efforts. Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992) (applying the rule in a Title VII case
pursuant to 42 U.S.C. ' 2000e-5(f)(1)).
Since this case is a review of the Commissioner=s decision on Plaintiff=s
application for benefits pursuant to the Social Security Act, the court is unable to
determine whether Plaintiff=s claim is colorable, and unable to consider the factors
enumerated above until the Commissioner answers the complaint and files the
administrative record herein.
Moreover, the court is aware that most attorneys who practice Social Security
appeals before this court do not charge a fee for services rendered in a Social Security
case unless the appeal is successful and benefits are ultimately awarded. In such a case,
attorney fees are limited by the Social Security Act to twenty-five percent of past-due
benefits. Therefore, it is possible Plaintiff may secure the services of an attorney even
after filing her complaint pro se. Moreover, Plaintiff applied for the appointment of
counsel on the court’s form application in which the Plaintiff stated she
understand[s] that the court typically requires that before seeking an
appointed attorney, a plaintiff confer with (not merely contact) at least five
attorneys regarding legal representation. Below is a list of the attorneys
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that I have contacted, a detailed description of the efforts that I made to
obtain representation, and the responses that I received
(Doc. 4, p.2) (bold added).
Plaintiff reports that she has sought representation from only two law firms, and
did not provide the dates of her contact, the response received, or a detailed description of
her efforts to obtain representation. Id. That is not such a diligent search as the court
requires, especially since Social Security practitioners do not usually charge clients
unless they win, and then only from past due benefits received. Therefore, the court
denies Plaintiff’s motion for appointment of an attorney.
IT IS THEREFORE ORDERED that Plaintiff’s motion to proceed in forma
pauperis (Doc. 3) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff=s Motion to Appoint Counsel (Doc.
4) is DENIED.
Dated this 24th day of March 2021, at Wichita, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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