Hale v. Emporia State University et al
MEMORANDUM AND ORDER denying without prejudice 4 Plaintiff's Motion to Appoint Counsel. Signed by Magistrate Judge Teresa J. James on 2/15/2017. (byk)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EMPORIA STATE UNIVERSITY (ESU), )
GWEN ALEXANDER, PH.D.,
DAVID CORDLE, PH.D.,
JACKIE VIETTI, PH.D.,
Case No: 16-cv-4182-DDC-TJJ
MEMORANDUM AND ORDER
Plaintiff has filed her Complaint alleging Defendant Emporia State University retaliated
against her on the basis of her race in violation of Title VII after she reported a racial slur found in
the workplace. Plaintiff also brings a claim under 42 U.S.C. § 1983 for First Amendment
retaliation against Defendants Alexander, Cordle, and Vietti for allegedly terminating her contract
in retaliation for Hale exercising her right to speak out against discrimination and racism. This
matter is before the Court on Plaintiff’s Motion for Appointment of Counsel (ECF No. 4). Plaintiff
requests that the Court appoint counsel to represent her in this case. For the reasons set forth
below, Plaintiff’s motion for the appointment of counsel is denied without prejudice.
While a defendant in a criminal action has a constitutional right to be represented by an
attorney, it is well settled that a party in a civil action has no similar constitutional right to
appointment of counsel.1 For some types of civil cases, however, Congress has provided statutory
See Nelson v. Boeing Co., 446 F.3d 1118, 1120-22 (10th Cir. 2006) (noting that “the only context
in which courts have recognized a constitutional right to effective assistance of counsel in civil litigation is
in immigration cases” and declining to recognize a right to counsel in a Title VII context); Sandle v.
authority for the appointment of counsel. For example, in employment discrimination actions
brought under Title VII of the Civil Rights Act of 1964, the court has discretionary authority under
to 42 U.S.C. § 2000e-5(f)(1) to appoint counsel “in such circumstances as the court may deem
just.” The court has “extremely broad” discretion to appoint counsel under § 2000e-5(f)(1).2 For
guidance, the Tenth Circuit has identified factors relevant to a court’s inquiry whether to appoint
counsel for a civil litigant in a Title VII action.3 Appointment of counsel is only appropriate under
§ 2000e-5(f)(1) after the plaintiff has affirmatively shown “(1) financial inability to pay for
counsel; (2) diligence in attempting to secure counsel; and (3) meritorious allegations of discrimination.”4 As “an aid in exercising discretion” in close cases, the court should also consider
whether the plaintiff has the “capacity to present the case without counsel.”5
When considering appointment of counsel, the Court remains mindful that Congress has
provided no mechanism for compensating appointed attorneys.6 “Thoughtful and prudent use of
the appointment power is necessary so that willing counsel may be located without the need to
make coercive appointments. The indiscriminate appointment of volunteer counsel to
undeserving claims will waste precious resource and may discourage attorneys from donating their
Principi, 201 F. App’x 579, 582 (10th Cir. 2006) (“There is no constitutional right to counsel in either a
Title VII case or other civil case.”); Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir.
1992) (holding that there is no constitutional right to counsel in a Title VII case); Durre v. Dempsey, 869
F.2d 543, 547 (10th Cir. 1989) (“There is no constitutional right to appointed counsel in a civil case.”).
Castner, 979 F.2d at 1420.
Id. at 1421.
time.”7 Finally, the Court notes that it has a limited pool of volunteer attorneys from whom it may
Financial Ability to Secure Counsel
Plaintiff must first show a financial inability to pay for counsel. Plaintiff has submitted an
Affidavit of Financial Status with her motion to proceed without prepayment of fees. Based upon
the information provided in that affidavit, the Court has granted her permission to proceed in
forma pauperis.8 The affidavit likewise shows that Plaintiff is financially unable to pay for
counsel to represent her in this action.
Efforts to Secure Counsel
A second factor the Court considers in determining whether to appoint counsel is whether
Plaintiff has affirmatively shown she made diligent efforts to secure counsel on her own before
filing the motion. This typically requires the party to meet with and discuss the case with at least
five attorneys.9 In her present motion, Plaintiff lists the names of nine attorneys she contacted but
was unable to obtain their services. The Court finds that Plaintiff has made sufficient efforts to
secure counsel on her own before requesting the appointment of counsel.
Merit of Allegations
With respect to the third factor, the Court has reviewed Plaintiff’s Complaint and
Defendants’ Motion to Dismiss. The Court declines to speculate on the merits of the claims
asserted by Plaintiff in her Complaint or the arguments presented by Defendants in their Motion to
See Order Granting Motion to Proceed Without Prepayment of Fees or Costs, ECF No. 8.
Jeannin v. Ford Motor Co., No. 09-2287-JWL-DJW, 2009 WL 1657544, at *1 (D. Kan. June 12,
Dismiss. The Court will therefore look to Plaintiff’s ability to represent herself, including
responding to the pending motion to dismiss.
Capacity to Present Case Without Counsel
Based upon the Court’s review of the Complaint and other pleadings filed to date, Plaintiff
has thus far shown herself to have the capacity and ability to present her case without counsel.
Plaintiff demonstrates a higher level of legal sophistication than is generally found in pro se
parties. Plaintiff has been able thus far to set out her legal claims and facts supporting those claims,
showing that she is capable of presenting her case without counsel.
The Court recognizes that its perception of the merits and other factors relevant to the issue
of appointment of counsel may vary over time.10 Due to such variance, courts “often re-evaluate
the need for appointed counsel at various stages of the proceedings.”11 While “a court may well
appoint counsel at the outset of a case, it might also decide to postpone the decision—for example,
until after resolution of dispositive motions—in order to give itself both more time and more
information to evaluate the plaintiff’s capabilities and the merits of the case.”12 As aptly stated in
Other factors contribute to the tentative nature of orders denying appointment of
counsel. Because district judges are reluctant to “squander [their] limited
resources of attorneys willing to take pro bono appointments,” they often postpone
the appointment decision until after dispositive motions as a means of weeding out
frivolous or unmeritorious cases. The timing of the appointment may also reflect
See Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 1998) (relying extensively on factors set out
in Poindexter v. FBI, 737 F.2d 1173 (D.C. Cir. 1984)).
th district co
ourt’s assessm of the adequacy of the record fo purposes of its own
decisionmaki A distric court that initially den a motion to appoint counsel
because it fee comfortab resolving a motion to dismiss on the basis of a record
roduced by a pro se plaintiff may lat appoint c
counsel to en
nsure the dev
of a record ad
dequate for summary jud
dgment or tri 13
ssed in Ficke continue t be relevan With bur
ckets, increas pro se filings, and de
umber of pro bono attorneys, the timi of
a request for appointm of coun arguabl takes on m
ance.14 For t
these reasons the
Court will deny Plain
ntiff’s motion but withou prejudice to the filing of a similar motion at a later
stage of the litigation
IT IS THER
RDERED th Plaintiff’ s Motion for Appointme of Couns
(ECF No 4) is denied without prejudice to Pl
laintiff filing a similar m
motion after t Court rul on
the pendi Motion to Dismiss (E No. 17) If the case proceeds to trial, furthe
ermore, the C
may on it own motio reconside whether th circumsta
ances warran a request f counsel t
represent Plaintiff at that time.
IT IS SO OR
Dated in Kan City, Ka
ansas, on this 15th day of February, 2
Teresa J. Ja
U. S. Magi
Porter v. Ro No. 13-03
3003-JTM-GL 2014 WL 169798, at * (D. Kan. J 14, 2014)
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