“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
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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,
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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
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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