Livsey v. Adventist LaGrange Memorial Hospital

Filing 52

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 7/13/2010. (aac, )

Livsey v. Adventist LaGrange Memorial Hospital

Doc. 52

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION D A P H N E Y LIVSEY, ) ) P la in tif f , ) v. ) ) A D V E N T IS T LaGRANGE MEMORIAL, ) H O S P IT A L , a/k/a ADVENTIST HEALTH ) S Y S T E M /S U N B E L T , INC. ) ) D e f e n d a n t. )

C a s e No. 09 CV 3129 M a g is tr a te Judge Young B. Kim

J u ly 13, 2010

M E M O R A N D U M OPINION and ORDER B e f o re the court is the motion of plaintiff Daphney Livsey ("Livsey") for appointment o f counsel. Livsey alleges in this employment discrimination case that defendant Adventist L a G ra n g e Memorial Hospital ("Adventist") terminated her employment in December 2008 b e c a u s e of her age (46), sex (female), race (African American) and protected activity (April 2 0 0 8 charge of discrimination filed with the EEOC). For the following reasons, the motion is denied: P r o c e d u r a l History and Background O n May 23, 2009, Livsey, by and through her attorney, filed a four-count complaint o f employment discrimination against Adventist. (R. 1, 3.) According to the complaint, A d v e n tis t terminated Livsey from her position as a Radiology Services Technician on D e c e m b e r 17, 2008, based on unlawful factors. (R. 1.) On September 25, 2009, Adventist f ile d its answer, and on December 3, 2009, the court ordered the parties to proceed with

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discovery. (R. 19, 27.) As of February 23, 2010, the parties were finished with written d is c o v e ry and were engaged in oral discovery. (R. 31.) O n May 13, 2010, the court ordered Livsey to supplement her written discovery re s p o n s e s by May 21, 2010, ordered Adventist until June 18, 2010, to complete its d e p o s itio n s and ordered the parties to appear for a settlement conference on July 21, 2010. (R. 38.) On June 14, 2010, Livsey's attorney, Michael Smith, filed a motion to withdraw f ro m this case. At the same time, Adventist filed a motion to extend the time to complete the d e p o s itio n of two third-party witnesses. (R. 41, 42.) On June 22, 2010, the court listened to Mr. Smith's explanation for seeking to withdraw from the case in camera and granted his m o tio n . (R. 46.) The court also granted Adventist's motion for extension of time to c o m p le te the two outstanding depositions and granted Livsey until July 21, 2010, to find new r e p r e s e n ta tio n . Later that day, Livsey completed the forms for "MOTION FOR

A P P O IN T M E N T OF COUNSEL" and "IN FORMA PAUPERIS APPLICATION AND F IN A N C IA L AFFIDAVIT." (R. 47, 48.). L iv s e y represented in her financial affidavit that she is unemployed, her total monthly in c o m e is $1,153 (unemployment benefits and state assistance), has a monthly car payment o f $320, and supports two children on her own. (R. 47.) In her motion for appointment of c o u n s e l, Livsey represented that she is unable to pay for an attorney and that she has c o n t a c te d "Michael T. Smith" and "Mr. J. Ambrose." (R. 48.) "Michael T. Smith" is the s a m e attorney who withdrew from this case the same day Livsey completed the form motion

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for appointment of counsel. Livsey also represented in the motion that she attended "some c o lle g e " but that "[her] ability to speak, write, and/or read English is limited because English is not [her] primary language." (Id.) O n July 9, 2010, Adventist filed a response opposing the motion for appointment of c o u n s e l. Adventist argued that: (1) the court should deny the motion for appointment of c o u n s e l because the case lacks merit; (2) Livsey failed to make any attempt to retain an a tto rn e y; and (3) Livsey is competent to represent herself in this case. In support, Adventist p o in te d out that in the middle of Livsey's deposition, her attorney recommended that she sign a stipulation to dismiss the case and when she elected against the advice of her counsel, c o u n s e l represented that he would be withdrawing from the case. (R. 50.) Adventist pointed o u t further that Livsey completed the motion on the same day the court granted Mr. Smith's m o tio n to withdraw and that she is a full-time student at DePaul University. A n a ly s is L iv s e y's motion for appointment of attorney is denied. Pursuant to 28 U.S.C. § 1915(e)(1), the court has the discretionary authority to "request an attorney to represent any p e rs o n unable to afford counsel." In order to properly exercise this discretion, the court must a n s w e r the following two questions: "(1) has the indigent plaintiff made a reasonable attempt t o obtain counsel or been effectively precluded from doing so; and if so, (2) given the d if f ic u lty of the case, does the plaintiff appear competent to litigate it [herself]?" Pruitt v. M o te , 503 F.3d 647, 654 (7th Cir. 2007) (en banc). As to the second question, the material

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issue is whether the difficulty of the case at hand (factually and legally) exceeds the pro se p la in tif f 's ability to litigate and present the case to the judge or jury by herself at trial. Id. at 655. H e re , Livsey failed to demonstrate in her motion that she made a reasonable attempt to obtain counsel or had been effectively precluded from doing so. According to the record, a n d the information available to the court, Livsey completed the financial affidavit and the m o tio n for appointment of counsel soon after she appeared in court for Mr. Smith's motion to withdraw from this case. There are no facts from which the court could draw an inference th a t Livsey made any attempt to retain a different attorney despite the fact that the court g ra n te d her until July 21, 2010. A ls o , based on the nature of this case, the court finds that Livsey is competent to litig a te this case herself. Although Mr. Smith drafted the complaint as a multi-count c o m p la in t, this case is a case straight forward termination case. Livsey alleges that Adventist tre a te d her differently from other similarly situated employees who are not members of her p ro te c te d class when it terminated her employment in December 2008. In order to defeat a m o tio n for summary judgment and to prevail at trial, Livsey has to offer evidence that the re le v a n t management official treated her differently from others and that the rationale for her te rm in a tio n lacks factual basis. An attorney may present this case more effectively than L iv s e y, but that is not the standard the court is required to follow when responding to a m o tio n for appointment of counsel. Id.

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Livsey represented that her ability to speak, write, and read English is limited because E n g lis h is not her primary language. However, this representation is inconsistent with the re c o rd and the court's own observation. First, the record does not show that Livsey required a n y assistance in completing the financial affidavit or the motion for appointment of counsel, w h ic h are both in English. Second, when Livsey appeared in court on June 22, 2010, the c o u rt did not notice her experiencing difficulty understanding the court or Mr. Smith or a d d re s s in g the court or that English is her second language. Notably, Livsey did not identify h e r primary language. Third, Adventist offered that it deposed Livsey without any difficulty o n June 10, 2010, and that she is a full-time student at DePaul University. (R. 50.) C o n c lu s io n F o r the foregoing reasons, Livsey's motion for appointment of counsel [48] is denied. ENTER:

_________________________________ Y o u n g B. Kim U n ite d States Magistrate Judge

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