Bell v. Younger

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARVA R. BELL,
Plaintiff,
v.
COLEMAN YOUNGER,
Defendant.
Case No. 26-4007-HLT-BGS
MEMORANDUM & ORDER ON
MOTION TO APPOINT COUNSEL
Plaintiff Marva R. Bell filed this action pro se, ostensibly alleging legal malpractice. (See
generally Doc. 1 and 10 attachments thereto.) In conjunction with her federal court Complaint (id.),
Plaintiff filed a motion to proceed without prepayment of fees (IFP motion, Doc. 3), with a
supporting financial affidavit (Doc. 3-1). The undersigned Magistrate Judge previously granted IFP
status to Plaintiff. (Doc. 6.)
After a review of Plaintiffs’ Complaint, the undersigned identified certain concerns and thus
recommended to the District Court that Plaintiff’s Complaint be dismissed for failure to state a
claim upon which relief may be granted and lack of subject matter jurisdiction. (Doc. 7.) That
report and recommendation remains pending before the District Court.
Plaintiff has now filed a motion requesting the appointment of counsel. (Doc. 11.) 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.
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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 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. (Doc. 6.) This weighs in favor of appointing counsel.
The second factor relates to Plaintiff’s diligence in searching for counsel. Plaintiff
must show that she 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 she has contacted only three
attorneys to inquire as to representation, despite the fact that the motion clearly indicates she
must confer with (not merely contact) at least five such attorneys. (Doc. 11, at 2-3.) This
lack of diligence weighs against Plaintiff’s request for appointment of counsel.
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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. As indicated above, after reviewing Plaintiff’s
complaint pursuant to 28 U.S.C. § 1915(e)(2), the undersigned Magistrate Judge recommended to
the District Court that Plaintiff’s claims be dismissed for failure to state a claim upon which relief
may be granted and lack of subject matter jurisdiction. (See generally Doc. 7.) Although this
recommendation remains pending before the District Court, this factor weighs against Plaintiff’s
request for counsel.
Regardless of the potential viability of Plaintiff’s claims, the final Castner factor will be
determinative – 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.
The Court understands that Plaintiff believes in her legal malpractice claim and believes that
she deserves an attorney to represent her. These beliefs, however, do not constitute valid bases 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. 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.
11) is DENIED.
Conclusion
IT IS THEREFORE ORDERED that Plaintiff’s motion for appointment of counsel (Doc.
11) is DENIED.
IT IS SO ORDERED.
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Dated at Wichita, Kansas, on this 10th day of February, 2026.
/S / BROOKS G. S EVERSON
Brooks G. Severson
United States Magistrate Judge
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