Opinion
CIVIL ACTION No. 04-2118-CM
April 28, 2004
MEMORANDUM AND ORDER
On March 24, 2004, plaintiff filed the instant action, alleging that the defendants violated her constitutional rights. This matter is before the court on plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. 2) and plaintiff's Motion to Appoint Counsel (Doc. 3).
I. In Forma Pauperis
Pursuant to 28 U.S.C. § 1915, any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who 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. 28 U.S.C. § 1915(a)(1).
Upon review of the financial information submitted in the affidavit in support of plaintiff's request to proceed in forma pauperis, the court is satisfied that plaintiff is unable to pay the costs of litigating this action. The court grants plaintiff's request to proceed in forma pauperis.
II. Appointment of Counsel
"[N]o one has a constitutional right to assistance of counsel in the prosecution or defense of a civil action." Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir. 1969). 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 § 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 her claims, and (4) the complexity of the legal issues raised by the claims. Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991).
In this case, it is difficult to analyze the merits of plaintiff's claims. The subject of plaintiff's claims apparently stem from an incident involving the Kansas City, Kansas Police Department, at which time the officers took plaintiffs two children from her. Plaintiff attaches a multitude of documents to her Complaint, which show that plaintiff's parental rights ultimately were terminated. The difficulty in ascertaining the basis for plaintiff's constitutional claims is in large part due to plaintiff's apparent inability to present her claims. Plaintiff's Complaint is confusing, and her literacy skills are obviously deficient. Moreover, the constitutionality regarding the events leading up to the severance of plaintiff's parental rights could present complex factual and legal issues.
Considering the nature of the factual issues raised, the potential complexity of the legal issues involved, and most significantly plaintiff's inability to present her claims, the court concludes that appointment of counsel is warranted in these circumstances. However, if counsel is convinced that plaintiff's claims are without merit, and thus conflicts with Federal Rule of Civil Procedure 11, counsel is at liberty to withdraw as attorney of record. IT IS THEREFORE ORDERED that plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. 2) and plaintiff's Motion to Appoint Counsel (Doc. 3) are granted. Accordingly, the Court now appoints Constance F. Peebles, a member of the bar of this Court, to represent Plaintiff in this action. Ms. Peebles address is 5920 Nall Avenue, Suite 202, Mission, Kansas 66202 and her telephone number is 913 909-0040.
The Court suggests that Ms. Peebles review the pro se complaint and determine whether a motion to amend the complaint should be filed. The Court also suggests that Mr. Peebles review D.Kan. Rules 83.5.3(e)(2) and 83.5.3.1 regarding the reimbursement of out-of-pocket expenses incurred by appointed counsel.
The Clerk of this Court is directed to forward copies of this Order to Plaintiff and to the attorney appointed to represent Plaintiff, in addition to Defendant's counsel.