Jenkins v. Learning Network LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JENNIFER JENKINS,
Plaintiff,
v.
LEARNING NETWORK, LLC,
Defendant.
Case No. 26-1098-EFM-BGS
ORDER GRANTING MOTION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND
DENYING MOTION FOR APPOINTMENT OF COUNSEL
This matter comes before the Court on Plaintiff Jennifer Jenkins’ Motion to Proceed
Without Prepayment of Fees, which requests leave for Plaintiff to proceed in forma pauperis (IFP
motion), along with the contemporaneously filed financial affidavit. (Docs. 3, sealed, and 3-1,
sealed.) Plaintiff has also filed a Motion for Appointment of Counsel. (Doc. 4.) Having reviewed
the same, the Court GRANTS Plaintiff’s IFP motion (Doc. 3) but DENIES her request for
counsel (Doc. 4).
I. 	Motion to Proceed
In Forma Pauperis (Doc. 3).
Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of a civil action
“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.” To succeed on an IFP motion, “the
movant must show a financial inability to pay the required filing fees.” Lister v. Dep’t of Treasury, 408
F.3d 1309, 1312 (10th Cir. 2005). Proceeding IFP “in a civil case is a privilege, not a right –
fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). The decision to
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grant or deny IFP status under § 1915 lies within the district court’s sound discretion. Engberg v.
Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).
Based on the financial information provided by Plaintiff in her affidavit of financial status
(Doc. 4, sealed), the Court finds that Plaintiff has shown an inability to pay the filing fee and a belief
that she is entitled to relief. Thus, the Court grants Plaintiff’s motion to proceed without
prepayment of fees (Doc. 3).
Having reviewed Plaintiff’s Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(e)(2), the Court
does not find grounds to recommend dismissal of the case at this time. Accordingly, service of
process upon the named Defendant is hereby authorized. This determination regarding initial
screening does not constitute any finding on the merits of Plaintiff’s claims, and Defendant retains
all rights to challenge the sufficiency of the Complaint through appropriate motions practice. The
Clerk shall prepare and issue summons to the U.S. Marshal or Deputy Marshal, who are hereby
appointed for such purpose pursuant to Fed. R. Civ. P. 4(c)(3).
II. 	Request for Counsel (Doc. 4).
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). “[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
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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 resource and may discourage attorneys from donating their time. Castner, 979
F.2d at 1421.
Under the first factor, the Court notes that Plaintiff has been given leave to proceed in forma
pauperis in this case. This weighs in favor of appointing counsel. The second factor relates to the
Plaintiff’s diligence in searching for counsel. Plaintiff must show that she “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). The Court typically requires the
movant to confer with at least five attorneys, not merely contact them. Williams v. Long, No. 21-
1141-HLT-GEB, 2021 WL 4439445, at *2 (D. Kan. Sept. 28, 2021). Here, Plaintiff’s motion
indicates she has contacted at least six attorneys, five of whom were unwilling to take her case and
one of whom did not respond to her inquiry. The Court finds that Plaintiff has been diligent in her
search for 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. Plaintiff has filed a pro se Complaint alleging
employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964
and the Age Discrimination in Employment Act. (Doc. 1.) As mentioned above, having reviewed
Plaintiff’s Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(e)(2), the Court does not find grounds
to recommend dismissal of the case at this time. Thus, this factor weighs in favor of her request for
counsel.
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The final factor is Plaintiff’s capacity to prepare and present the case without the aid of
counsel. Castner, 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.
The Court understands that Plaintiff believes she has a meritorious claim and deserves an attorney to
represent her. This, by itself, however, is not a basis for the Court to appoint an attorney. 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.
Further, the factual and legal detail in Plaintiff’s Complaint would indicate to the Court that she is
capable of representing herself. (See generally Doc. 1.) In other words, although Plaintiff is not
trained as an attorney, this alone also does not warrant appointment of counsel. As such, Plaintiff’s
Motion for Appointment of Counsel (Doc. 4) is DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed without Prepayment
of Fees (Doc. 3) is GRANTED. Pursuant to 28 U.S.C. § 1915(a)(1), Plaintiff may commence this
action without prepayment of fees. The Clerk shall prepare and issue summons to the U.S. Marshal
or Deputy Marshal, who are appointed for such purpose pursuant to Fed. R. Civ. P. 4(c)(3).
IT IS FURTHER ORDERED that Plaintiff’s request for counsel (Doc. 4) is DENIED
for the reasons set forth above.
IT IS SO ORDERED.
Dated April 28, 2026, at Wichita, Kansas.
/S /BROOKS G. S EVERSON
Brooks G. Severson
United States Magistrate Judge
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