Opinion

Thomas v. Enriched Schools

Court
District Court, E.D. Louisiana
Filed
Jul 19, 2024
Cited by
0 cases
Authority
More cited than 31.4%

“conflicting testimony” are among the “common elements in civil rights cases” and does not necessarily “rise to the level of exceptional circumstances.”

How later courts described this case

  • “conflicting testimony” are among the “common elements in civil rights cases” and does not necessarily “rise to the level of exceptional circumstances.”
  • counsel is only appointed under exceptional circumstances in a civil rights case
  • “An attorney should be appointed only if exceptional circumstances exist.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JENE PATRICE THOMAS CIVIL ACTION

VERSUS NO. 23-3505

ENRICHED SCHOOLS SECTION “O”(4)

ORDER AND REASONS

Plaintiff Jene Patrice Thomas filed an ex parte Motion for Appointment of Attorney

Pursuant to 42 U.S.C. § 2000e-5(f)(1) (ECF No. 19) requesting that counsel be appointed to

assist her in this in forma pauperis civil rights case brought under the Americans with Disabilities

Act, 42 U.S.C. § 12117. Thomas sued defendant Enriched Schools alleging that she was

unlawfully terminated from her employment with defendant because of an alleged disability. ECF

No. 1. In her motion, Thomas claims that she is unable to pay for a lawyer and has been

unsuccessful in obtaining pro bono counsel. ECF No. 19, at 1. The Court scheduled the motion

for submission for July 3, 2024, and ordered Thomas to provide additional information as to her

efforts to obtain counsel, which she has done. ECF Nos. 23, 24.

I. Standards for Appointment of Counsel

A. Appointment under Title VII

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e provides for the appointment of an

attorney upon request “in such circumstances as the court may deem just.” 42 U.S.C. § 2000e–

5(f)(1). Courts consider: (1) the merits of the claims of discrimination; (2) the efforts taken by

plaintiff to obtain counsel; and (3) plaintiff's financial ability to retain counsel. Gonzalez v. Carlin,

907 F.2d 573, 580 (5th Cir. 1990) (citing Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309

(5th Cir. 1977); Neal v. IAM Local Lodge 2386, 722 F.2d 247, 250 (5th Cir. 1984)).

Though these factors are not exclusive, and no one factor is conclusive, the evaluation of

the merits of the claim is most important, considering the unfairness of imposing on a member of

the bar to serve when there is little chance of success. Buesgens v. Snow, 169 F. App’x 869, 871

(5th Cir. 2006). Determinations by the EEOC are “highly probative” of the merits of a plaintiff’s

case and are properly considered when assessing a request to appoint counsel. Paskauskiene v.

Alcor Petrolab, L.L.P., 527 F. App’x 329, 333 (5th Cir. 2013) (citing Gonzalez, 907 F.2d at 580).

Under the second factor, a reasonably diligent attempt to secure counsel means, at a minimum,

speaking to an attorney about the merits of the case and pursuing a contingent fee arrangement.

Weber v. Holiday Inn, 42 F. Supp. 2d 693, 698 (E.D. Tex. 1999); see also Smith v. Baton Rouge

Radiology Grp., No. 12-400, 2013 WL 3246142, at *2 (M.D. La. June 24, 2013) (plaintiff failed

to make diligent effort to obtain counsel where she contacted several attorneys, but failed to “state

whether or not she had inquired about the possibility of a contingency fee agreement with any

attorney.”).

B. Appointment under the Pauper Statute

Appointment of counsel is also available in civil rights cases, like this one, that are

proceeding under the in forma pauperis statute. 28 U.S.C. § 1915(e)(1). Appointment of counsel

under this provision is only to be considered when exceptional circumstances exist that warrant

the appointment. Pena v. Brown, 637 F. App’x 162 (5th Cir. 2016) (counsel is only appointed

under exceptional circumstances in a civil rights case); McFaul v. Valenzuela, 684 F.3d 564, 581

(5th Cir. 2012) (“An attorney should be appointed only if exceptional circumstances exist.”). The

Court looks to several factors when considering a request for counsel in a § 1983 case: (a) the type

and complexity of the case; (b) whether the indigent is able to present the case adequately; (c)

whether the person is in a position to investigate the case adequately; and (d) whether the evidence

2

will consist in large part of conflicting testimony so as to require skill in the presentation of

evidence and in cross-examination. Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992)

(quoting Murphy v. Kellar, 950 F.2d 290, 293 n.14 (5th Cir. 1992)); Cooper v. Sheriff, Lubbock

Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991); Dung Ngoc Huynh v. Baze, 317 F. App’x 397, 399

(5th Cir. 2009) (citing Parker, 978 F.2d at 193).

The appointment of counsel in a civil case is a privilege, not a constitutional right.

Paskauskiene, 527 F. App’x at 333 (citing Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982)); see

also Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); Naranjo v. Thompson, 809 F.3d 793,

801-02 (5th Cir. 2015). Thus, a civil rights complainant, even if indigent, “has no right to the

automatic appointment of counsel.” Ulmer, 691 F.2d at 212; see Thompson v. Tex. Dep’t of Crim.

Just., 67 F.4th 275, 283 (5th Cir. 2023). Instead, appointment of counsel is at the discretion of the

court when doing so “would advance the proper administration of justice,” and be a service to the

court and all parties in the case by “sharpening the issues . . ., shaping the examination of witnesses,

and thus shortening the trial and assisting in a just determination.” Ulmer, 691 F.3d at 213.

II. Discussion

Considering appointment under both Title VII, and the pauper statute, this Court previously

granted Thomas pauper status, and finds this sufficient to establish her financial inability to retain

counsel. ECF No. 3. In her response to the Court’s order for information, Thomas indicated that

she contacted a self-help legal service and three attorneys, all of whom were unable or unwilling

to assist her free of charge. ECF No. 24. This is sufficient to establish that she has made diligent

efforts to seek counsel on her own.

Nevertheless, on review of her claims, and the circumstances of the case, it does not appear

that Thomas is entitled to appointment of counsel. For purposes of Title VII appointment,

3

Thomas’s claim of discriminatory discharge from employment is currently under review by the

District Judge through the defendant’s pending Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)

for failure to present facts or otherwise state a plausible claim in her Complaint. See ECF No. 15.

Briefly, defendants’ motion argues, inter alia, that Thomas failed to plead factual support for her

allegations that she suffered with a disability or that defendant knew about the disability when she

was released from employment for alleged failings in her duties. Id.

In issuing its right to sue letter, the EEOC declined to proceed further with its investigation,

making no comment on the merits of Thomas’s claims themselves. ECF No. 1-1, at 1. The

findings from the Social Security Administration Administrative Law Judge indicated that Thomas

“has not been under a disability within the meaning of the Social Security Act from August 17,

2018, through the date of this decision,” which was August 30, 2021. ECF No. 6.

Based on the foregoing, although the Court has not yet ruled on defendant’s motion, strictly

for purposes of this motion to appoint counsel, it appears that “the merits of [plaintiff’s] claims are

weak,” and it would be “unfair[ ] to requir[e] an attorney to donate his or her time when there is

little chance of success from this perspective and it would be it does not appear appropriate to

burden counsel with appointment.” Buesgens, 169 F. App’x at 871. Thomas is not entitled to

appointment under Title VII parameters.

For purposes of appointment under the pauper provision, although any litigant could

benefit from assistance of counsel, the circumstance of this case do not involve exceptional

circumstances to require appointment of counsel. Carter v. Allen, 762 F. App’x 827, 836 (11th

Cir. 2019). Thomas, an apparently well-educated person with Ph.D. and M.A. degrees, has

demonstrated an ability to present her arguments and prepare cogent pleadings. Under a broad

reading of her pro se complaint, the claims that she has or seeks to assert (see Plaintiff’s

4

Opposition, ECF No. 18) are not factually or legally complex. Her claims also do not appear to

involve complex evidence, testimony, or circumstances that would require assistance of counsel,

even if the potential for conflicting testimony should develop. See James v. Gonzalez, 348 F.

App’x 957, 958 (Sth Cir. 2009) (“conflicting testimony” are among the “common elements in civil

rights cases” and does not necessarily “rise to the level of exceptional circumstances.”).

In summary, Thomas’s claims themselves are not unusual or exceptional and instead

appear typical of this type of civil action, an action in which she has demonstrated an ability to

present her claims. Should it become apparent that the judicial process would benefit from

appointment of counsel as the case evolves, the circumstances can be evaluated at that time.

Ulmer, 691 F.2d at 213. Accordingly,

IT IS ORDERED that Thomas’s Motion for Appointment of Attorney Pursuant to 42

U.S.C. § 2000e-5()(1) (ECF No. 19) is DENIED.

New Orleans, Louisiana, this 19th day of July, 2024.

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.