Horton v. Sierra Conservation Center et al

Filing 42

ORDER DENYING 39 Motion to Appoint Counsel signed by Magistrate Judge Sandra M. Snyder on 10/14/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOHN D. HORTON,

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CASE NO. 1:09-cv-01441-SMS
Plaintiff,

v.

ORDER DENYING PLAINTIFF’S REQUEST
FOR APPOINTMENT OF COUNSEL

SIERRA CONSERVATION CENTER,
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,

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(Doc. 39)
Defendant.

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/

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Plaintiff John Horton, proceeding pro se and in forma pauperis, moves for appointment
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of counsel. Because of procedural and substantive deficiencies in Plaintiff’s motion, this Court
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denies Plaintiff’s motion, without prejudice to his again bringing the motion after correcting the
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deficiencies noted in this order.
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A party has no constitutional right to the employment of counsel in an employment
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discrimination case. Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir.

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1982). In an appeal of an Equal Employment Opportunity Commission (EEOC) action, a court
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has the statutory authority to appoint counsel “in such circumstances as the court may deem just.”
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42 U.S.C. § 20003-5(f)(1). In making its determination, the trial court must consider (1) the
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plaintiff’s financial resources; (2) the efforts made by the plaintiff to secure counsel on his own;
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and (3) the merits of the plaintiff’s claim. Bradshaw v. Zoological Society of San Diego, 662
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F.2d 1301, 1318 (9th Cir. 1981) (“Bradshaw I”).

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Plaintiff correctly contends that, having qualified to proceed in forma pauperis, he has
already demonstrated his impecunity. See Bradshaw I, 662 F.2d at 1318.

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Regarding his efforts to retain counsel, Plaintiff states in a footnote to his motion only

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that he “has contacted all attorneys listed on the website of the National Employment Lawyers

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Association (www.nela.org) as practicing in the state of California.” Doc. 39 at 1. This bare

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statement, without more, does not permit the Court to evaluate the nature of Plaintiff’s efforts or

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the responses of the attorneys he contacted. Plaintiff is directed to fully set forth the specifics of

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his contacts with prospective attorneys and appropriate legal aid offices, including the names of

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those he contacted, the nature of his contact with each attorney (that is, telephone, face-to-face

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meeting, etc.), the reason each attorney declined to represent Plaintiff, and the fee arrangements

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discussed with each attorney (such as pro bono representation, full or reduced fee, or contingent

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fee arrangements). Plaintiff must set forth this documentation in a declaration meeting the

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requirements of 28 U.S.C. § 1746. (For assistance, Plaintiff is referred to the information and

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forms included in General Order No. 188, which is available from this Court’s website

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(www.caed.circ9.dcn/caed/DOCUMENTS/GeneralOrders/188.pdf).)

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In the same footnote, Plaintiff addresses the merits of his case merely by stating his

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personal opinion that “ Defendant cannot support its termination action as the articulated reasons

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of the defendant (i.e. a traffic ticket and the omission of one probationary employment of the

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employment application as authorized by the California Personnel Board) cannot be sustained on

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a motion for summary judgment when a similarly situated white female under the age of forty

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would not have been terminated on a similar pretext.” Doc. 39 at 2. Plaintiff’s own opinion is

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not sufficient to establish that his case has merit. To establish this element, a plaintiff must set

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forth, in a declaration meeting the requirements of 28 U.S.C. § 1746, the evidence that he will

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produce at trial and explain why this evidence will show that Defendant discriminated against

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him. Production of a right-to-sue letter issued by the EEOC will establish this element since, in

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issuing a right-to-sue letter, the EEOC has determined the existence of probable cause that the

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plaintiff was discriminated against. See Bradshaw I, 662 F.2d at 1319-20. Plaintiff’s declaration

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must also address whether he complied with all statutory deadlines in presenting his claim.
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Plaintiff is reminded that, even if he resubmits his motion for appointed counsel in

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compliance with the requirements noted above and in General Order No. 188, appointment of

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counsel is not guaranteed. Congress has neither appropriated funds to compensate attorneys

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appointed to represent plaintiffs in Title VII cases nor authorized the Court to impose involuntary

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servitude on attorneys competent to represent plaintiffs in employment cases. See, e.g.,

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Bradshaw v. United States District Court for the Southern District of California, 742 F.2d 515,

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516-18 (9th Cir. 1984) (“Bradshaw II”). Should Plaintiff re-file his motion and succeed in

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convincing the Court that he has satisfied the three elements required under Bradshaw I, the

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Court can do no more than refer Plaintiff to the Clerk of Court for possible assignment of a

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voluntary panel attorney if one is available. See, e.g., id.; Johnson v. NCT Services, 631 F.Supp.

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606, 608 (D. Hawaii 1986) (finding that the plaintiff was not entitled to appointment of counsel

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where the organization designated by the court to identify pro bono counsel was unable to find

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counsel willing to represent him).

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Plaintiff’s motion is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:
icido3

October 14, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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