Smith (ID 2000018492) v. ADE-WIFCO Steel Products et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BERNARD L. SMITH,
Plaintiff,
v.
ADE-WIFCO STEEL PRODUCTS, et al.,
Defendant.
Case No. 25-3136-DDC-BGS
MEMORANDUM & ORDER ON
MOTION TO APPOINT COUNSEL
Plaintiff Bernard Smith filed this action pro se in July 2025, alleging employment
discrimination. (Doc. 1.) In conjunction with his federal court Complaint (id.), Plaintiff filed a
motion to proceed without prepayment of fees (IFP motion, Doc. 3, sealed), with a supporting
financial affidavit (Doc. 3-1, sealed). At the time, the case was assigned to District Judge John
Lungstrum, who granted IFP status to Plaintiff. (Doc. 4, text Order.)
Plaintiff subsequently filed a motion requesting appointment of counsel. (Doc. 7.) This
motion was also resolved by Judge Lungstrum, who denied the request for counsel, finding that “(1)
the issues [in this case] are not complex, and (2) Plaintiff appears capable of adequately presenting
facts and arguments.” (Doc. 10, at 6 (citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115
(10th Cir. 2004) (internal citation omitted)).)
The case was ultimately reassigned to District Judge Daniel Crabtree. The case has
progressed, resulting in Defendants filing a motion to dismiss for failure to state a claim. (Doc. 17.)
Defendants have also filed a motion to strike (Doc. 23) Plaintiff’s surreply to the dispositive motion,
arguing that the surreply is unnecessary and Plaintiff did not seek leave to file it. Both motions are
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currently pending.
Plaintiff subsequently filed a second motion requesting appointment of counsel. (Doc. 24.)
Therein, Plaintiff argues that counsel should be appointed because he cannot afford counsel, he has
been diligent in searching for counsel, he has alleged “meritorious allegations of discrimination,” and
because his case requires a significant amount of discovery, including depositions and expert
witnesses. (Doc. 24, at 1-2.) For the reasons set forth below, this motion is DENIED.
Motion for Appointment of Counsel
As an initial matter, the Court notes there is no constitutional right to have counsel
appointed in civil cases such as this one. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169
(10th Cir. 2003); Lynn v. Willnauer, Case No. 19-3117-HLT, 2021 WL 1390384, *22 (D. Kan.
April 13, 2021). “[A] district court has discretion to request counsel to represent an indigent
party in a civil case” pursuant to 28 U.S.C. § 1915(e)(1). Commodity Futures Trading Comm’n v.
Brockbank, 316 F. App’x 707, 712 (10th Cir. 2008). The decision whether to appoint counsel
“is left to the sound discretion of the district court.” Lyons v. Kyner, 367 F. App’x 878, n.9
(10th Cir. 2010) (citation omitted).
The Tenth Circuit has identified four factors to be considered when a court is
deciding whether to appoint counsel for an individual: (1) plaintiff’s ability to afford counsel,
(2) plaintiff’s diligence in searching for counsel, (3) the merits of plaintiff’s case, and (4)
plaintiff’s capacity to prepare and present the case without the aid of counsel. McCarthy v.
Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985) (listing factors applicable to applications
under the IFP statute); Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir.
1992). Thoughtful and prudent use of the appointment power is necessary so that willing
counsel may be located without the need to make coercive appointments. The
indiscriminate appointment of volunteer counsel to undeserving claims will waste a precious
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resource and may discourage attorneys from donating their time. Castner, 979 F.2d at 1421. For the
reasons discussed below, the Court finds that, on balance, the above factors weigh against
appointing counsel.
Under the first factor, the Court notes that Plaintiff has been given leave to proceed in forma
pauperis in this case. (Doc. 4, text Order.) This weighs in favor of appointing counsel. The second
factor relates to Plaintiff’s diligence in searching for counsel. Plaintiff must show that he has “made
a reasonably diligent effort under the circumstances to obtain an attorney.” Martinez v. Pickering, No.
22-CV-4027-JWB-RES, 2022 WL 1604616, at *2 (D. Kan. May 20, 2022). Here, Plaintiff’s motion
indicates that he has contacted eight attorneys, which establishes his diligence. Thus, this factor also
weighs in favor of appointing counsel.
The next factor is the viability of Plaintiff’s claims in federal court. See McCarthy, 753 F.2d at
838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. In regard to this factor, “[t]he burden is on the
applicant to convince the court that there is sufficient merit to his claim to warrant the appointment
of counsel.” Hill, 393 F.3d at 1115 (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir.
1985)). As discussed above, a motion to dismiss Plaintiff’s claims is currently pending before the
District Court. The present Order makes no determination as to the validity of that dispositive
motion and/or the merits of Plaintiff’s claims. Thus, the Court finds this factor to be
nondeterminative for purposes of analyzing Plaintiff’s request for counsel.
Regardless of the potential viability of Plaintiff’s claims, and notwithstanding that two
factors weigh in favor of appointment, the Court’s analysis turns to the final Castner factor, –
Plaintiff’s capacity to prepare and present their case without the aid of counsel. 979 F.2d at 1420-21.
In considering this factor, the Court must look to the complexity of the legal issues and Plaintiff’s
ability to gather and present crucial facts. Id. at 1422. Merely alleging that counsel could assist in
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presenting the “strongest possible case” does not justify granting such a motion. Lane v.
Brewer, No. 07-3225-JAR, 2008 WL 3271921, at *2 (D. Kan. Aug. 7, 2008).
In this regard, Plaintiff argues this case will require “extensive documentary
discovery,” including depositions. (Doc. 24, at 2.) He also indicates he “may need expert
witnesses for the testimony of multiple witnesses, personal involvement of multiple
defendants in this case.” (Id.) Further, he argues that this “case may not be won without a
high degree of SKILLS based on a firm foundation of depositions and other [pretrial]
discovery and preparation that is beyond the ability of a Pro se litigant.” (Id. (capitalization
in original).)
As discussed above, the District Court has already determined that the issues in this
case “are not complex” and that “Plaintiff appears capable of adequately presenting facts and
arguments.” (Doc. 10, at 6.) There is nothing presently before the Court that would lead
the undersigned Magistrate Judge to find otherwise. Plaintiffs’ case is not unusually complex
in comparison to litigants who represent themselves pro se in federal cases on a regular basis.
See e.g. Cox v. Ann (LNU), 924 F. Supp. 2d 1269 (D. Kan. 2013) (denying the appointment of
counsel in a case alleging §1983 claims for violation of right to medical care as pretrial
detainee under the 14th Amendment, deliberate indifference in rejecting a medical request,
official custom or policy permitting denial of medical request, and related state tort claims);
McLain v. Sedgwick Co. Sheriff’s Office, No. 25-4036-JWB-BGS, 2025 WL 1696525, at *2-3 (D.
Kan. June 17, 2025) (denying the appointment of counsel in a case wherein the pro se
plaintiffs contend there were “complex federal civil rights claims involving multiple
government entities, systematic violations of constitutional and statutory rights, and an
alleged pattern of racketeering activity designed to suppress Plaintiffs’ federally protected
rights under the ADA and Fair Housing Act”).
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The Court understands that Plaintiff believes in his employment discrimination claim and
believes that he deserves an attorney to represent him. These beliefs, however, do not constitute
valid bases for the Court to appoint an attorney. Plaintiff has filed a coherent response to
Defendants’ dispositive motion, citing both case law and federal statutes while containing factual
and legal analysis. (See generally Doc. 20.) While the Court does not doubt that a trained attorney
would handle the matter more effectively, the Court sees no basis to distinguish Plaintiff from the
many other untrained individuals who represent themselves pro se on various types of claims in
courts throughout the United States on any given day. In other words, although Plaintiff is not
trained as an attorney, this alone also does not warrant appointment of counsel.
While Plaintiff has satisfied the threshold financial and diligence in searching for counsel
factors, Castner requires affirmative showings on the first three requisite factors. Castner, 979 F.2d at
1421. Because the merits remain unresolved and Plaintiff’s capacity to present his case weighs
against appointment, the balance does not support granting the motion. As such, Plaintiff’s request
for counsel (Doc. 24) is DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s motion for appointment of counsel (Doc.
24) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 23rd day of March, 2026.
/S / BROOKS G. S EVERSON
Brooks G. Severson
United States Magistrate Judge
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