Opinion
CIVIL ACTION NO. 00-5004
November 26, 2003
MEMORANDUM AND ORDER
Presently before the Court is Defendant Thomas E. Mason's Addendum to Motion to Schedule Hearing for Assignment of Court Appointed Counsel and to Proceed In Forma Pauperis. (Doc. No. 136.) After careful consideration, we conclude that Defendant's Motion should be granted.
Defendant is currently incarcerated for civil contempt for failing to turn over to Plaintiff millions of dollars that belong to Plaintiff. Defendant requests leave to proceed in forma pauperis as well as appointed counsel in connection with a hearing scheduled for December 11, 2003. At that hearing, Defendant will have the burden of showing that it is impossible for him to comply with this Court's order. Under federal law, we may permit a person to proceed in forma pauperis and appoint counsel for them if such person "submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress." 28 U.S.C. § 1915(a)(1). See also Walker v. McLain, 768 F.2d 1181, 1185 (10th Cir. 1985) (noting that several courts of appeal agree that "due process does require, at a minimum, that an indigent defendant threatened with incarceration for civil contempt for nonsupport, who can establish indigency under the normal standards for appointment of counsel in a criminal case, be appointed counsel to assist him in his defense").
We previously denied Defendant's motion for leave to proceed in forma pauperis and appointment of counsel because he failed to submit an affidavit demonstrating his entitlement thereto. Defendant has now submitted an affidavit arguably showing that he cannot afford to retain counsel. Considering the fact that Defendant is currently incarcerated for civil contempt for failing to turn over to Plaintiff millions of its dollars, we are hesitant to find that Defendant is indigent and entitled to appointed counsel. However, in light of the liberty interest at stake, we will grant Defendant leave to proceed in forma pauperis and appoint counsel, on the condition that Defendant reimburse the Court its costs if it is later determined that Defendant can afford counsel.
An appropriate order follows.
ORDER
AND NOW, this ___ day of November, 2003, upon consideration of the Defendant Thomas E. Mason's Addendum to Motion to Schedule Hearing for Assignment of Court Appointed Counsel and to Proceed In Forma Pauperis (Doc. No. 136), and all papers filed in support thereof or in opposition thereto, it is ORDERED that:
1. Defendant is granted leave to proceed in forma pauperis.
2. Paul A. Sarmousakis is appointed to represent Defendant, on the condition that Defendant reimburse the Court its costs if it is later determined that Defendant can afford counsel.
IT IS SO ORDERED.