Dyer v. USD 500 et al

Filing 29

MEMORANDUM AND ORDER denying 14 plaintiff's Objection to Order of Magistrate Judge. Signed by District Judge J. Thomas Marten on 4/13/2012. (mss) Modified on 4/13/2012 to correct that no parties were notified by mail as everyone is set up to receive electronic notification (aa).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Mozella M. Dyer,
Plaintiff,

vs.

Case No. 12-2081-JTM

USD 500 et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is before the court on the Objection filed by pro se plaintiff Mozella Dyer to the
February 8, 2012 (Dkt. 6) Order of the United States Magistrate Judge denying her request to
appoint counsel. In that decision, the Magistrate Judge properly observed that there is no
fundamental right to appointment of counsel in private employment discrimination actions, Castner
v. Colo. Springs Cablevision, 979 F.2d 1417, 1420–21 (10th Cir. 1992). To the contrary,
appointment should occur only if the refusal to appoint counsel would be fundamentally unfair. See
McCarthy v. Weinberg, 753 F.2d 836, 839–40 (10th Cir. 1985).
Under Fed.R.Civ.P. 72(a), a party may file an objection to a magistrate's nondispositive
order. Upon review, the district judge “must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). The district
court must affirm the magistrate's order “unless it ‘on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d

1458, 1464 (10th Cir.1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395,
68 S.Ct. 525, 92 L.Ed. 746 (1948)).
Dyer does not meet this standard. The Magistrate Judge determined that appointment should
not occur because Dyer had failed to demonstrate that she had done very much to actually contact
counsel, and recommended that she contact the Wichita Lawyer Referral Service. In addition, the
same Order noted that the combination of the “relatively simple facts," which Dyer should be able
to articulate, with the fact that “it does not appear that plaintiff’s claims are particularly
meritorious.” (Dkt. 6, at 2-3).
In her Objection, Dyer states that she had contacted the Lawyer Referral Service prior to
filing her case (Dkt. 14, at 2), but she fails to address the remainder of the Magistrate Judge’s
rationale for denying appointment, other than to generally complain that she will have to face “the
team of lawyers on defendant’s payroll who have years of litigation experience.”She also complains
about “deadlines and time limits may be ten days or less,” and that she “may not currently be
utilizing the proper terminology.” (Id. at 1, 2).
None of Dyer’s arguments demonstrate that the decision of the Magistrate Judge was clearly
erroneous or contrary to law. The pleadings in the case demonstrate that the plaintiff can adequately
articulate her position, and future pleadings can be interpreted, and deadlines adjusted, with
reference to the plaintiff’s pro se status.
But plaintiff obtains nothing through simply repeating the same arguments. In addition to
her Objection, the court notes that plaintiff as directed multiple e-mails to the chambers of the
undersigned which repeat the same arguments. The plaintiff is hereby directed and enjoined to cease
any and all such e-mail communications. All written communications with the court shall occur
through pleadings filed with the Clerk of the Court.

IT IS ACCORDINGLY ORDERED this 13th day of April, 2012 that the plaintiff’s
Objection (Dkt. 14) is hereby denied.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE