Fusilier v. Wichita, Kansas, City of, Police Department et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAREN M. FUSILIER, )
)
Plaintiff, )
)
v. ) Case No. 25-1292-JWB-GEB
)
CITY OF WICHITA POLICE )
DEPARTMENT, EDWARD BROWER, )
CORRIE MCCLUSKEY, )
JUSTIN WOODY, MARIO OCON, )
DARLENE ZERR, LANDON ERICK, )
VALERIE SHIRKEY, )
ROBERTS DALTON et al, )
)
)
Defendants. )
)
ORDER
This matter is before the Court on Plaintiff Karen M. Fusilier’s Motion for
Appointment of Counsel Pursuant to 23 USC § 1915(e)(1) (“Motion”) (ECF No. 4). For
the reasons outlined below, Plaintiff’s Motion is DENIED without prejudice as to refiling.
For parties who proceed in forma pauperis, 28 U.S.C. § 1915(e)(1) provides
discretionary authority for the Court to “request an attorney to represent any person unable
to afford counsel.”1 However, there is no constitutional right to counsel in a civil action.2
1 28 U.S.C. § 1915(e)(1); Jackson v. Park Place Condominiums Ass’n, Inc., No. 13-2626-CM,
2014 WL 494789, at *1 (D. Kan. Feb. 6, 2014).
2 See Sandle v. Principi, 201 F. App’x 579, 582 (10th Cir. 2006) (citing Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992) (Title VII case); Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989) (civil case)).
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The Court, in its discretion, evaluates multiple factors when deciding whether to request
an attorney for an indigent party.3 In Castner v. Colo. Springs Cablevision,4 the Tenth
Circuit identified four factors which are relevant to the district court’s decision whether to
appoint counsel: (1) a plaintiff’s financial inability to pay for counsel; (2) a plaintiff’s
diligence in attempting to secure counsel; (3) the existence or nonexistence of meritorious
allegations of discrimination; and (4) a plaintiff’s capacity to present the case without
counsel.
The Court’s appointment power must be thoughtfully and prudently used so willing
counsel may be located,5 but consideration of the increase in pro se filings and the limited
number of attorneys willing to accept pro bono appointment is also very important.6
Regarding the second Castner factor, a plaintiff’s diligence in attempting to secure counsel,
the Court typically requires a party meet and confer with at least five attorneys regarding
the case.7
After careful consideration, the Court declines to appoint counsel to represent
Plaintiff. Plaintiff has satisfied the first prong of the Castner analysis – she is unable to
afford counsel, as established in her Affidavit of Financial Status.8 But Plaintiff fails the
second factor, diligence in attempting to secure counsel.
3 Jackson, 2014 WL 494789, at *1.
4 Castner, 979 F.2d at 1422.
5 Castner, 979 F.2d at 1421.
6 Jackson, 2014 WL 494789, at *3.
7 Id. at *2.
8 ECF No. 3-1, sealed.
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Her Motion does not demonstrate sufficient efforts to obtain counsel. She does not
list any attorneys or law firms she contacted regarding this matter in her Motion. And if
Plaintiff made contact with counsel at all, Plaintiff provides no information about the
response received from any attorneys about her matter. The Court is hopeful with time and
diligence, Plaintiff may secure an attorney to represent her.
The third factor of Castner requires the Court find Plaintiff has stated a valid claim.
The undersigned is currently screening Plaintiff’s complaint under 28 U.S.C. §
1915(e)(2)(B). The merits of Plaintiff’s claim have yet to be determined, making the
Motion premature. Therefore, the third factor does not weigh in favor of appointment of
counsel at this time.
Plaintiff also fails the fourth factor -- the plaintiff’s capacity to prepare and present
the case without the aid of counsel. There is no indication, at least in this early stage of
litigation, Plaintiff cannot adequately represent herself. Plaintiff’s multiple filings reflect
some understanding of court rules and procedures.
The Court is cognizant, “its perception of the merits and other factors relevant to the
issue of appointment of counsel may vary”9 as the case moves forward. Postponing a
decision to appoint counsel at this early stage allows the Court to gain more information
about both the merits of Plaintiff’s claims and her ability to present this case to the Court.10
Although “a court may well appoint counsel at the outset of a case, it might also decide to
9 Jones v. Maritz Rsch. Co., No. 14-2467-SAC, 2014 WL 6632929, at *3 (D. Kan. Nov. 21, 2014)
(citing Ficken v. Alvarez, 146 F.3d 978, 981 (D.C.Cir.1998)).
10 Id.
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postpone the decision—for example, until after resolution of dispositive motions—in order
to give itself both more time and more information to evaluate the plaintiff’s capabilities
and the merits of the case.”11
For the reasons outlined above, IT IS ORDERED Plaintiff Karen M. Fusilier’s
Motion for Appointment of Counsel Pursuant to 23 USC § 1915(e)(1) (ECF No. 4) is
DENIED without prejudice as to refiling in the event the case proceeds.
IT IS SO ORDERED.
Dated this 28th day of April 2026.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
11 Zillner v. Brennan, No. 15-9904-DDC, 2016 WL 81229, at *3 (D. Kan. Jan. 7, 2016) (citing
Ficken, 146 F.3d at 981 (internal citations omitted)).
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