Opinion
CIVIL ACTION NO. 04-0366
February 17, 2004
ORDER AND REASONS
Before the Court is the request of pro se plaintiff, Samuel Michael Schildkraut ("Schildkraut"), seeking appointment of counsel to represent him in the captioned matter filed pursuant to Title VII of the Civil Rights Act. For the reasons explained below, the Court denies the plaintiff's motion for appointment of counsel.
BACKGROUND
Plaintiff has articulated his protected status and the following claims with cogency and precision; his allegations are replete with appropriate references to both federal and Louisiana law relative to his allegations of Title VII retaliatory discharge and reprisal due to his "whistle blowing activities" regarding the defendants' allegedly unlawful gaming practices. Plaintiff claims that the reprisals took various forms, to wit: (1) a frivolous "write-up" alleging that he harassed two female casino dealers; (2) an assault and battery by his supervisor, Alfred Holy; and (3) his termination within two days of his alleged report of illegal dice activities. He further claims disparate treatment on account of his race (white), sex (male) and religion (Jewish). However, the plaintiff states that he does not contend that the defendant is prejudiced per se; rather, he contends that the defendant intentionally used the plaintiff's sex, race and religion against him, making it difficult for him to either work in peace or have a cause of action before the EEOC. See Complaint at ¶ 10. Plaintiff seeks over four million dollars in damages and requests trial by jury.
ANALYSIS
The Court's power to "appoint counsel" is derived from 28 U.S.C. § 1915(e)(1), which provides that the "court may request an attorney to represent any person unable to afford counsel." Plaintiff does not have either a constitutional right or an automatic right to appointed counsel in a civil case. Unlike a criminal defendant, an indigent civil rights litigant, even if currently incarcerated, does not have a right to appointed counsel absent "exceptional circumstances." Indeed, the federal court has considerable discretion in determining whether to make such an appointment in a civil case. The Court has discretion to appoint counsel in such a case if doing so would advance the proper administration of justice. The plaintiff bears the burden of persuasion as to the necessity of such an appointment.
See Caston v. Sears, Roebuck and Co., 556 F.2d 1305, 1309 (5th Cir. 1977).
"See Norton v. E.U. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Vitug v. Merit Systems Protection Board, 2002 WL 1216023 (E. D. La.) (Shushan, M. J.); Sly v. Stalder, 2002 WL 31371958 (E. D. La.) (Wilkinson, M. J.).
See Salmon v. Corpus Christi Independent School District, 911 F.2d 1165, 1166 (5th Cir. 1990).
See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982); Salmon v. Corpus Christi Independent School Dist., 911 F.2d 1165, 1166 (5th Cir. 1990).
See Caston, 556 F.2d at 1310.
The evidence submitted regarding the plaintiff's indigence and efforts made to secure counsel on his own are bare minimum threshold considerations. Those are simply two of the factors which should guide the court in making the determination as to the necessity of appointing counsel. The term "exceptional circumstances" generally relates to the type and complexity of the case and the ability of the plaintiff to present his claim. More particularly, the following factors are considered when ruling on a request for appointment of counsel in a civil rights matter: (a) the type and complexity of the case; (b) whether the indigent is capable of presenting his case adequately; (c) whether he is in a position to investigate his case adequately; and (d) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross-examination. The district court should also consider whether appointment of counsel would be of service to the court and the defendant by sharpening the issues in the case.
Robbins v. Maggio, 750 F.2d 405, 412 (5th Cir. 1985).
Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992); Ulmer, 691 F.2d at 213.
Id.
As to the probable success of the Title VII claims brought by the plaintiff, the Court notes that the plaintiff's claims were presented to the EEOC and have resulted in the determination by that agency that the information provided by the plaintiff fails to establish violations of the statutes. Additionally, the case at bar is not complex and the plaintiff was a direct participant in the events that form the basis of his complaint. Plaintiff's case is that the defendant's retaliatory conduct has cost the plaintiff his job, humiliation, emotional damages and economic injury. The alleged report and retaliatory conduct occurred during a succinct three to four day period. The plaintiff presents the circumstances in the complaint with some degree of precision and exhibits thorough familiarity of his own rights vis a vis the rights of others similarly situated under the various relevant statutory schemes. In so far as the presentation of the issues, the plaintiff's pleading is superior to that of the typical civil pro se indigent litigant, even recognizing the skew of the statutory scheme with respect to "protected status" as only one familiar with the law would be capable of discerning. There is no hint that the plaintiff is hampered by an impediment of any genre that would prevent him from either ably investigating or prosecuting the instant claims against the defendant, his former employer.
The Court recognizes that every litigant benefits by having an attorney. However, the burden is on the plaintiff to demonstrate that, unique from other pro se litigants, he will have particular difficulty in either investigating or presenting his case, such that his situation justifies the special benefit of having counsel appointed to represent him. For reasons set forth above, the Court finds that this is not the type of extraordinary case in which appointment of counsel will necessarily assist either the parties or the court with presentation of the issues. Rather, on balance, the factors weigh decidedly against granting the relief sought at this stage of the proceedings.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served within ten days after being served with a copy of this order. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. l(a), 6(b) and 72(b) A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge; and (2) appellate review of the unobjected-to factual findings and legal conclusions accepted by the district court, except upon grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
Accordingly, IT IS ORDERED that the plaintiff's Motion for Appointment of Counsel is DENIED.