Simelton v. Pilot Flying J

Filing 46

OPINION AND ORDER: The Court DENIES without prejudice and with leave to refile the letter 43 and GRANTS Plaintiff up to and including 1/20/2017, for Plaintiff to file a Motion for Appointment of Counsel consistent with this Opinion and Order. The Court ORDERS that briefing on the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 37 and 41 44 is hereby STAYED pending resolution of Plaintiffs request for appointment of counsel. Signed by Magistrate Judge Paul R Cherry on 12/19/2016. (lhc)(cc: Plaintiff)

UNITED STATES DISTRICT COURT
NORTHER DISTRICT OF INDIANA
HAMMOND DIVISION
GARY SIMELTON,
Plaintiff,
v.
PILOT FLYING J,
Defendant.

)
)
)
)
)
)
)

CAUSE NO.: 2:15-CV-33-TLS-PRC

OPINION AND ORDER
This matter is before the Court on a letter [DE 43], filed, pro se, by Plaintiff Gary Simelton
on December 5, 2016.
In a Title VII case, a court may, “in such circumstances as the court may deem just, . . .
appoint an attorney for [a] complainant.” 42 U.S.C. § 2000e-5(f)(1); see also Johnson v. Dencek,
868 F.2d 969, 970 (7th Cir. 1989). The Court considers three factors when determining whether to
appoint counsel in a Title VII case: “the merits of the plaintiff’s claim, the plaintiff’s diligence in
attempting to obtain a lawyer, and the plaintiff’s financial ability to retain counsel.” Darden v.
Illinois Bell Tel. Co., 797 F.2d 497, 500-01 (7th Cir. 1986) (citation omitted).
Any one of these factors may be determinative in a particular case. See id. at 501. For
example, “if a discrimination claim lacks merit, counsel will not be appointed regardless of the
plaintiff’s diligence in seeking representation or lack of financial means,” or “a plaintiff with a very
strong case may be refused appointed counsel because he or she is able to pay for an attorney.” Id.
The Seventh Circuit Court of Appeals urges district courts to compile a complete record that reveals
that the “Title VII plaintiff was informed of the requirements for appointment of counsel and was
given an opportunity to attempt to satisfy those requirements.” Id.

Accordingly, the Court now NOTIFIES the pro se Plaintiff of the three factors considered
by the Court when determining whether to appoint counsel in a Title VII case: (1) the merits of the
Plaintiff’s claim, (2) the Plaintiff’s diligence in attempting to obtain a lawyer, and (3) the Plaintiff’s
financial ability to retain counsel. See Darden, 797 F.2d at 500-01. The Court will address each
factor and the additional information the Court requires from the Plaintiff in order to make a
determination on her request for counsel.
First, regarding the merits of the Plaintiff’s claim, the Seventh Circuit Court of Appeals has
held that, “in cases in which a request for counsel is denied because of the claim’s lack of merit, the
record must reflect that the court gave the plaintiff an opportunity to give his or her version of the
facts and to object to the EEOC’s determination.” Id. at 502. The appraisal of the merits of the
plaintiff’s claim may be based in part, but not solely, on the EEOC’s finding of “no reasonable
cause” as well as the EEOC investigative file. Id. at 501. Therefore, the Court ADVISES Plaintiff
that, for the Court to reach a decision on the merits of a motion to appoint counsel, he must provide
the Court with a copy of the EEOC investigative file for his charge of discrimination related to his
claim in this case. If the motion is refiled, after the Court has had an opportunity to review the EEOC
investigative file, the Court will hold a hearing to conduct a “brief oral examination of the plaintiff.”
Id. at 501.
For the second factor—the Plaintiff’s diligence in attempting to obtain a lawyer—the
Plaintiff indicates that he has “contacted many of the attorneys in Indiana and Illinois and has not
been able to afford the fees.” The Court finds that the Plaintiff has not demonstrated to the Court an
attempt to contact a sufficient number of attorneys in Lake and Porter Counties in Indiana who
practice employment law. Many attorneys and firms in Lake and Porter Counties represent plaintiffs

2

in employment discrimination cases, and some may do so without requiring payment at the outset.
Therefore, for this second factor, the Court ADVISES Plaintiff that, for the Court to reach a decision
on the merits of a motion to appoint counsel, he must provide the Court with further evidence that
he has contacted a sufficient number of attorneys who practice in this District and who represent
plaintiffs in employment discrimination cases. The Court further ADVISES the Plaintiff, in any
future motion to appoint counsel, to specifically list at least seven firms and/or attorneys who
represent plaintiffs in employment discrimination cases in this District that have declined to
represent him and the specific basis expressed by that attorney and/or firm for declining to represent
him.
As to the third factor, the Court finds that the Plaintiff has provided sufficient information
from which to assess his financial ability to retain counsel. In any future motion, Plaintiff need not
provide any further information than that presented in the two applications to proceed without
prepaying fees but he should provide updated information if there are any changes to his finances
since the last filing on July 20, 2016.
Accordingly, the Court now DENIES without prejudice and with leave to refile the letter
[DE 43] and GRANTS Plaintiff up to and including January 20, 2017, for Plaintiff to file a Motion
for Appointment of Counsel consistent with this Opinion and Order.
The Court ORDERS that briefing on the Motion to Dismiss Pursuant to Federal Rule of
Civil Procedure 37 and 41 [DE 44] is hereby STAYED pending resolution of Plaintiff’s request for
appointment of counsel.
SO ORDERED this 19th day of December, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

Pro se Plaintiff
3