Deng v. Lutheran Social Services of South Dakota

Filing 8

ORDER denying 4 Motion to Appoint Counsel ; denying 3 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Roberto A. Lange on 7/12/18. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

DEBORAH AKUGE DENG,

4:18-CV-04071-RAE

Plaintiff,

6pe^ion and order denying
vs.

LUTHERAN SOCIAL SERVICES OF SOUTH

DAKOTA,

PLAINTIFF'S MOTION FOR
APPOINTMENT OF COUNSEL AND
DENYING PLAINTIFF'S IFP
APPLICATION WITHOUT PREJUDICE
TO REFILING

Defendant.

Deborah Deng (Deng) brought this suit pro se against Lutheran Social Services of South

Dakota(ESS)on June 21, 2018. Doc. 1. At the time of filing, Deng sought to proceed in forma
pauperis, filing a Motion for Appointment of Counsel and an affidavit in support of this motion,
Doc. 4, as well as an Application to Proceed in District Court without Prepaying Fees or Costs,
Doc. 3. For the reasons stated below,this Court denies Deng's Motion for Appointment ofCounsel
and denies without prejudice to refiling her Application to Proceed in District Court without

Prepaying Fees or Costs because she has not satisfactorily disclosed the necessary financial
information to this Court.

I.

Alleged Facts and Procedural Background

According to her complaint, Deng was employed by ESS in Sioux Falls, South Dakota

when she injured her knee in April 2015. Doc. 1 at 1. She was delayed in having her knee injury
treated and on February 24, 2017, underwent surgery on it. Doc. 1 at 3. Before her operation,
Deng requested medical leave fi-om ESS. Doc. 1 at 3. She provided ESS with a note from her

treating physician and Family Medical Leave Act(FMLA)paperwork. Doc. Iat3. Her supervisor
approved her request for medical leave. Doc. 1 at 3. On February 23, 2017, the day before her

procedure, Deng was informed that her employment would be terminated due to downsizing of
her division on March 10, 2017, a date when Deng still would be on FMLA leave. Doc. 1 at 3.

Deng's supervisor told her that she could apply to be rehired for the division's available positions,

whieh had been reduced from five to three. Doe. 1 at 3. Although she applied to be rehired by the
division, Deng was not offered a position by LSS. Doc. 1 at 3.

On June 21, 2018, Deng filed not only her Complaint, but also an Application to Proceed

in District Court Without Prepaying Fees or Costs, Doc. 3. The application form was incomplete,
containing no information whatsoever regarding Deng's ineome and assets. Doc. 3. Deng also
filed a Motion to Appoint Counsel which stated that she had unsuceessfiilly sought to obtain
counsel and could not afford reasonable attomey's fees. Doc. 4.
n.

Discussion

Deng alleges that LSS violated FMLA, the Americans with Disabilities Aet, and Sioux

Falls Munieipal Code § 98.003' by terminating her. Doc. 1 at 3. She seeks to recover $8,000 in
compensatory damages for her medical expenses, plus court fees.

Deng's Application to Proceed in District Court Without Prepaying Fees or Costs is

incomplete and lacks necessary information regarding Deng's finances. IfDeng is in fact indigent,
this Court has authority under 28 U.S.C. § 1915(a)(1) to allow her to proceed without paying the
filing fee.

'Deng alleges LSS violated her rights "protected by Code of Ordinances of Sioux Falls, South
Dakota, Chapter 98," likely seeking to invoke § 98.003, whieh prohibits employers from failing
or refusing to hire or discharging an individual on the basis of disability. This is a claim over
which there is no separate federal jurisdiction, although this Court may exercise supplemental
jurisdiction over such a claim if any of Deng's federal law claims are viable.

[A]ny court ofthe United States may authorize the commencement, prosecution or

defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepajmient of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such [person]^ possesses that the
person is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1). However,Deng disregarded the instruction on the form to "[cjomplete all
questions in this application" and "[d]o not leave any blanks: if the answer to a question is '0,'
'none,' or 'not applicable (N/A),' write that response." Doc. 3. Deng's filing was largely blank,
providing the Court insufficient information to determine whether she is eligible to proceed
without prepaying fees. Consequently,Deng's application. Doc. 3,is denied,but shemay resubmit
a completed application.

This Court also denies Deng's Motion for Appointment of Counsel, Doc. 4. "There is no
constitutional or statutory right for an indigent to have counsel appointed in a civil case." Nelson

V. Redfield Lithograph Printing. 728 F.2d 1003, 1004 (8th Or. 1984). However, a court "may
request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1).

The test employed to determine whether to appoint counsel is "whether both petitioner and the
court would benefit fi-om the assistance of counsel." Nachtigall v. Class. 48 F.3d 1076, 1081 (8th
Cir. 1995). In this instance, appointing counsel is inappropriate because Deng has not established
herself to be indigent and because at this early point it assists the Court little to have counsel
appointed. Deng has managed to file a comprehensible complaint and outlined her claims for the
Court.

HI.

Conclusion

The text of 28 U.S.C. § 1915(a)(1) reads "prisoner" rather than "person" here, but other courts

have found that the use of"prisoner" rather than using the word "person" again in the provision
was unintentional.
Waltner v. United States. 93 Fed. Cl. 139, 141 n.2 (Fed. Cl. 2010)
("Congress did not intend for non-prisoners to be barred from being able to proceed in forma
pauperis in federal court.").

For the reasons stated above, it is hereby

ORDERED that Deng's Application to Proceed in District Court without Prepaying Fees
or Costs, Doc. 3, is denied without prqudice to completing and resubmitting a new, properly
completed application. Deng shall have until August 10, 2018,either to pay the full filing fee and
arrange service OR to complete in full the Application to Proceed without Prepaying Fees and
Costs. It is further

ORDERED that Deng's Motion for Appointment of Counsel, Doc. 4, is denied.

DATED this <3***day ofJuly, 2018.
BY THE COURT:

ROBERTO A. LANCjE

UNITED STATES DISTRICT JUDGE