Estrada-Elosua v. Petroleum Club of Lafayette

Filing 6

ORDER re 3 MOTION to Appoint Counsel filed by Alejandro Estrada-Elosua. IT IS THEREFORE ORDERED that the EEOC file a copy of its investigative file, including any computer-generated notes, Alejandro Estrada-Elosua, Charge No. 846-2012-11234, in to the record by May 18, 2012. Any documents as to which the EEOC asserts the deliberative information privilege shall be produced directly to the offices of the undersigned for in camera inspection. IT IS FURTHER ORDERED that, upon receipt of the EEOC file, the Clerk shall mail a copy of the file to plaintiff. Plaintiffs response is due ten days from his receipt of the EEOC file. Signed by Magistrate Judge C Michael Hill on 4/16/2012. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
ALEJANDRO ESTRADA-ELOSUA

CIVIL ACTION NO. 12-0531

VS.

JUDGE HAIK

PETROLEUM CLUB OF LAFAYETTE MAGISTRATE JUDGE HILL
ORDER REGARDING MOTION FOR APPOINTMENT OF COUNSEL
Before the court is a Motion for Appointment of Counsel filed by plaintiff,
Alejandro Estrada-Elosua, on February 28, 2012.1
The plaintiff seeks appointment of counsel in connection with this employment
discrimination suit under Title VII of the Civil Rights Act, which affords courts
discretion to appoint counsel. 42 U.S.C. § 2000e-5(f)(1) ("[u]pon application by the
complainant and in such circumstances as the court may deem just, the court may
appoint an attorney for such complainant[.])"
A civil rights plaintiff has no absolute right to an appointed counsel. Rather,
the decision of whether to provide counsel lies solely within the discretion of the
court. Salmon v. Corpus Christi I.S.D., 911 F.2d 1165, 1166 (5th Cir. 1990); Gonzalez
v. Carlin, 907 F.2d 573, 580 (5th Cir. 1990) (citing Caston v. Sears, Roebuck & Co.,

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Plaintiff is proceeding in forma pauperis. See Rec. Doc. 4.

556 F.2d 1305 (5th Cir.1977); Johnson v. City of Port Arthur, 892 F.Supp. 835, 839
(E.D.Tex.1995).
The Fifth Circuit has set forth three general factors in evaluating applications
for appointment of counsel in Title VII cases. Caston, 556 F.2d at 1309-10. The
factors are: (1) the effort taken by the complainant to obtain counsel on his or her
own, (2) the complainant's financial ability to retain counsel, and (3) the merits of the
complainant's claims of discrimination. See also Neal v. IAM Local Lodge 2386, 722
F.2d 247, 250 (5th Cir.1984).
The first factor requires a determination regarding plaintiff's efforts to obtain
counsel.

Plaintiff has documented no efforts to obtain counsel on his own.

Consequently, this factor has not been satisfied.
The second factor relates to the plaintiff’s Application to Proceed in Forma
Pauperis. The undersigned is satisfied that plaintiff has established that he is unable
to pay the necessary fees and that he is unable to retain counsel. Consequently, the
second factor has been satisfied.
Finally, with respect to the merits of plaintiff's claim, the court must consider
the determination of the EEOC. While an unfavorable determination must be
considered, it cannot be given preclusive effect. An adverse EEOC determination
may "weigh heavily in the scales against appointing an attorney" only when the court
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finds "the EEOC determination is supported by substantial evidence in the
investigative file and that the plaintiff's objections thereto are patently frivolous."
Caston, 556 F.2d at 1309; see also Neal, 722 F.2d at 250.
The attachments to plaintiff’s complaint indicate that claimant filed Charge
No. 846-2012-11234 on November 21, 2011. On December 5, 2011, the EEOC
indicated that it was closing its file because “[b]ased on its investigation, the EEOC
is unable to conclude that the information obtained establishes violations of the
statutes.”
In Neal, the Fifth Circuit, in reviewing the Magistrate’s denial of a request for
an attorney, remanded the case, stating that “[t]he Magistrate in this case did nothing
more than review the allegations in the complaint." Neal at 249. Because very little
information was contained in the Complaint and the attached EEOC documents, I find
there is insufficient information in the record at this time to make an evaluation of
plaintiff's claim.
The Fifth Circuit has acknowledged the propriety of a Magistrate Judge's
review of the EEOC investigative file for the purpose of evaluating the merit of a
Title VII claim. Neal, 722 F.2d at 250. In the instant case, the EEOC’s file is not in
the record; thus, I will order the EEOC to file a copy of their investigative file of the
plaintiff's claims in this record.
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IT IS THEREFORE ORDERED that the EEOC file a copy of its
investigative file, including any computer-generated notes, Alejandro Estrada-Elosua,
Charge No. 846-2012-11234, into the record by May 18, 2012. Any documents as
to which the EEOC asserts the deliberative information privilege shall be produced
directly to the offices of the undersigned for in camera inspection.
IT IS FURTHER ORDERED that, upon receipt of the EEOC file, the Clerk
shall mail a copy of the file to plaintiff. Plaintiff’s response is due ten days from his
receipt of the EEOC file.
IT IS FURTHER ORDERED that the Clerk shall send a copy of this Order
to the EEOC, New Orleans District Office, 701 Loyola Ave., Suite 600, New Orleans,
LA 70113-9936.
Signed at Lafayette, Louisiana on this 16th day of April, 2012.

Copy sent: EEOC, New Orleans District Office
On: 4-16-2012
By: MBD

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