Opinion
01 Civ. 499 (RCC) (KNF)
October 30, 2002
MEMORANDUM and ORDER
Jamel White, a pro se litigant, brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112-12117. He alleges that while he was employed by the defendant United States Postal Service ("USPS"), a supervisory USPS employee, L. Bergon ("Bergon"), discriminated against him, based on plaintiffs race, by directing racial slurs at plaintiff "constantly" and by "making rude comments like, `I know your kind you're [. . .]'" and "I don't like your kind." In addition, plaintiff maintains that Bergon discriminated against him, in violation of the ADA, by challenging plaintiffs contention that he suffered two on-the-job injuries.
Unlike criminal defendants, indigents, like plaintiff, filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915 (e)(1) provides that the court may request an attorney to represent any person unable to afford counsel. In the instant case, plaintiff made an application to proceed in forma pauperis. Consequently, he is within the class to whom 28 U.S.C. § 1915 (e)(1) speaks.
"In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986),cert. denied, 502 U.S. 986, 112 S.Ct. 596 (1991). This means that it appears to the court "from the face of the pleadings," (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the plaintiff "may have merit," (see Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1999]), or that the plaintiff "appears to have some chance of success . . ."Hodge, 802 F.2d at 60-61.
When a plaintiff is proceeding pro se, a court must construe the plaintiffs complaint liberally. See Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In this case, plaintiff has alleged that, at his workplace, he was "constantly" the target of racial slurs. Viewed liberally, this assertion might be plaintiffs attempt at stating a racially hostile work environment claim under Title VII See e.g., Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997). However, without more facts, the Court cannot state definitively that, from the face of the complaint, such a claim may, in the instant case, have merit such that granting plaintiffs request for court appointed counsel would be justified.
With respect to plaintiffs ADA claim, 42 U.S.C. § 12111 (2) and (5)(B)(i), make clear that the USPS is not an employer, as that term is used in the ADA and, therefore, is not an entity covered by that statute. Consequently, it is clear from the face of the pleadings that the ADA claim asserted by plaintiff is without merit. Therefore, it would not be appropriate for the Court to appoint counsel to assist plaintiff in prosecuting his ADA claim.
Under the circumstances, plaintiffs application for court-appointed counsel is denied without prejudice. Should plaintiff determine, in the future, that a sufficient factual basis exists upon which to renew his application, he may do so at that time.