Tilmon v. Polo Ralph Lauren Factory Store
ORDER denying 4 Motion to Appoint Counsel. Signed by Magistrate Judge James P. O'Hara on 7/6/2017. Mailed copy of order to Melba Tilmon by regular mail. (ydm) Modified on 7/6/2017 (lak).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELBA A. TILMON
POLO RALPH LAUREN FACTORY STORE, )
Case No. 17-2383-JAR
The pro se plaintiff, Melba A. Tilmon, brings this employment-discrimination action
against her employer, Polo Ralph Lauren Factory Store, alleging that due to her age and race
(African-American) she has been passed over for promotions and wage increases. Plaintiff
has filed a motion asking the court to appoint counsel to represent her in this case (ECF No.
4). For the reasons discussed below, the motion is denied.
In civil actions such as this one, there is no constitutional right to appointed counsel.1
The court is not obligated to appoint counsel in every employment-discrimination case.2 The
decision to appoint counsel lies solely in the court’s discretion, and should be based on a
Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003); Ivory v.
Werholtz, No. 09-3224-SAC, 2009 WL 4043304, at *3 (D. Kan. Nov. 19, 2009) (citing
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)).
Lister v. City of Wichita, Kansas, 666 F. App’x 709, 713 (10th Cir. 2016) (quoting
Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992)).
determination that the circumstances are such that a denial of counsel would be
fundamentally unfair.3 “In determining whether to appoint counsel, the district court should
consider a variety of factors, including the merits of the litigant’s claims, the nature of the
factual issues raised in the claims, the litigant’s ability to present his claims, and the
complexity of the legal issues raised by the claims.”4 The court also considers the efforts
made by the litigant to retain her own counsel.5
The court does not find it appropriate to appoint counsel for plaintiff. A review of the
papers prepared and filed by plaintiff indicates she is capable of presenting the case without
the aid of counsel, particularly given the liberal standards governing pro se litigants. The
factual and legal issues in the case are not extraordinarily complex. The court has no doubt
that the district court judge assigned to this case will have little trouble discerning the
applicable law. The court must also consider the merits of plaintiff’s claim. Based on the
limited factual allegations and claims presented in the complaint, the court is unable to
determine whether plaintiff’s claims are particularly meritorious. Finally, it appears that
plaintiff has only contacted three attorneys in an attempt to retain her own counsel, and only
one of those attorneys declined representation, while one has expressed “interest in
Castner v. Colo. Springs Cablevision, 979 F.2d at 1420.
Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods.,
Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700, at *1 (D. Kan. June 23, 2011) (applying
the Long factors).
Lister, 666 F. App’x at 713; Sommerville v. Republic Cnty. Hosp., No. 10-4119, 2010
WL 5172995, at *1 (D. Kan. Dec. 14, 2010).
consultation” and one has not yet responded.6
In the end, the court concludes that this is not a case in which justice requires the
appointment of counsel. If plaintiff devotes sufficient efforts to presenting her case, the court
is certain that she can do so adequately without the aid of counsel. Plaintiff’s request for
appointment of counsel therefore is denied.
Plaintiff is informed that within 14 days after she is served with a copy of this order,
she may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file objections to this
order by filing a motion for review of this order by the presiding U.S. district judge. A party
must file any objections within the 14-day period if the party wants to have appellate review
of this order.
IT IS SO ORDERED.
Dated July 6, 2017, at Kansas City, Kansas.
s/James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
ECF No. 4 at 2-3.
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