Opinion
CIVIL ACTION No. 00-2499-KHV
December 26, 2000
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff's Application for Leave to File Action Without Payment of Fees, Costs or Security (doc. 2) and her Application for Appointment of Counsel in an Action for Discrimination in Employment Under Title VII (doc. 3).
A. Application for Leave to File Action Without Payment of Fees, Costs or Security
Section 1915(a) of Title 28 in the United States Code sets forth the circumstances under which an individual is allowed to bring proceedings in forma pauperis. That statute provides that "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit . . . that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1).
Proceeding in forma pauperis in a civil case "is a privilege, not a right — fundamental or otherwise." White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998), cert. denied, 526 U.S. 1008 (1999). The decision to grant or deny in forma pauperis status under section 1915 lies within the sound discretion of the trial court. Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999); Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983); Buggs v. Riverside Hosp., No. 97-1088-WEB, 1997 WL 321289, at *1 (D.Kan. Apr. 9, 1997). This is especially true in civil cases for damages, where the courts should grant the privilege "sparingly." Forrester v. Via-Christi-St. Joseph and ITS Representatives, No. 97-1243-MLB, 1997 WL 557329, at *1 (D.Kan. June 10, 1997). In denying such applications, however, a court must not act arbitrarily or deny the application on erroneous grounds. Id.
In her affidavit of financial status, Plaintiff states she is not employed but receives Aid to Families with Dependent Children ("AFDC") payments of $532.00 per month. Plaintiff further states she has monthly grocery expenses of approximately $350.00 and monthly expenses of approximately $400.00 for house utilities. Plaintiff declares she has no assets.
In sum, Plaintiff is not employed and receives monthly assistance payments less than her monthly expenses. Based on this information, the Court finds Plaintiff is unable to pay the $150.00 filing fee.
For the foregoing reasons, Plaintiff's Motion for Application for Leave to File Action Without Payment of Fees, Costs or Security (doc. 2) is hereby granted.
B. Application for Appointment of Counsel Under 28 U.S.C. § 1915 (e)
Unlike a criminal case, a party has no constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). The court may, however, in its discretion, appoint counsel in a civil action to represent a person proceeding in forma pauperis. See 28 U.S.C. § 1915(e) ("[t]he court may request an attorney to represent any person unable to afford counsel."). The appointment of counsel under Section 1915(e) is a matter within the sound discretion of the district court. Miller v. Glanz, 948 F.2d 1562, 1572 (10th Cir. 1991). In determining whether to appoint counsel, the district court may consider a variety of factors, including: (1) the merits of the litigant's claim, (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. Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981) (per curiam)).
The first factor to be considered is the merits of the litigant's claims. Plaintiff's Complaint states she is filing an employment discrimination claim under Title VII. Plaintiff's factual allegations, however, do not support a claim of employment discrimination under Title VII. More specifically, Plaintiff alleges her son was forcibly arrested for criminal trespass by campus security at the middle school he attends and that school officials failed to contact her regarding the arrest itself or the location of her son's subsequent detainment.
Plaintiff appears to have used the employment discrimination forms provided by this Court to assist her in preparing her Complaint. Construing Plaintiff's pleadings liberally, however, the Court reasonably can read Plaintiff's pleading to state a possible claim under 42 U.S.C. § 1983. Given these circumstances, the Court — for the sole purpose of determining whether to appoint counsel — will construe Plaintiff's Complaint as pleading a cause of action pursuant to 42 U.S.C. § 1983.
Section 1983 of Title 42 creates a cause of action against any person who, under color of state law, causes another to be deprived of a federally protected constitutional right. 42 U.S.C. § 1983. In order to state a cause of action under Section 1983, a plaintiff must allege two elements: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and the laws of the United States. Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978).
In this case, Plaintiff alleges that her son's school officials deprived Plaintiff of her parental right to be informed of the actions taken by the school and the location of her son. Plaintiff further alleges that the persons who deprived her of her alleged right were school officials at Northwest Middle School, a public school located in the Kansas City, Kansas school district. Given Plaintiff's allegations and the possible due process claims, the Court finds the first factor to be considered in appointing counsel weighs in favor of Plaintiff's request. The second factor to be considered by the Court is the nature of the factual issues raised in the claims. In this case, the nature of the factual issues do not appear to be overly complex or appear to require significant skill in setting forth the essential facts of the claim. Accordingly, this factor weighs against appointing Plaintiff counsel.
The ability of the Plaintiff to present her claims is the third factor to be considered here. In this case, Plaintiff is a single, unemployed mother with three teenage children. Her only stated source of income is AFDC assistance payments. These facts, along with Plaintiff's ability to communicate in writing as evaluated by the Court through pleadings submitted thus far, weigh in favor of appointing Plaintiff counsel.
The final factor to consider is the complexity of the legal issues raised by the litigant. Here, the constitutional issues require a fair amount of legal knowledge and the resources to obtain that legal knowledge. The Court, therefore, decides this factor in favor of appointing counsel.
For the above-stated reasons, Plaintiff's Application for Appointment of Counsel (doc. 3) is granted and Tammy M. Somogye, a member of the bar of this Court, of the law firm Lathrop Gage, L.C., 40 Corporate Woods, 9401 Indian Creek Parkway, Overland Park, Kansas, 66210, (913) 451-5100, is hereby appointed as attorney for Plaintiff in this matter. The Court suggests that appointed counsel review the pro se Complaint and determine whether an amended complaint should be filed.
Accordingly, it is hereby ordered that Plaintiff's Application for Leave to File Action Without Payment of Fees, Costs or Security (doc. 2) and what the Court construes as an Application for Appointment of Counsel in a 42 U.S.C. § 1983 action (doc. 3) are both granted.
The Clerk of this Court is directed to forward copies of this Order to Plaintiff and to the attorney appointed to represent Plaintiff.
IT IS SO ORDERED.