Lucas v. Memphis City School Board of Education

Filing 3

ORDER Granting Leave to Proceed In Forma Pauperis; ORDER Denying Appointment of Counsel and ORDER to Issue and Effect Service of Process. Signed by Judge J. Daniel Breen on 5/4/06. (Breen, J.)

Lucas v. Memphis City School Board of Education

Doc. 3

Case 2:06-cv-02234-JDB-dkv

Document 3

Filed 05/04/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

WILLIAM H. LUCAS, III, Plaintiff, vs. MEMPHIS CITY SCHOOLS BOARD OF EDUCATION, Defendant.

) ( ( ) ) ( ( ) ) ( ( ) ) ( ( ) ( ) ) ( ( ) ) (

No. 06-2234-B/V

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ORDER DENYING APPOINTMENT OF COUNSEL AND ORDER TO ISSUE AND EFFECT SERVICE OF PROCESS

Plaintiff William H. Lucas, III filed a pro se complaint pursuant to Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and 42 U.S.C. § 1983 on April 19, 2006, along with a motion seeking leave to proceed in forma pauperis. On the basis of the information contained in the plaintiff's

affidavit, the motion to proceed in forma pauperis is GRANTED. The Clerk shall record the defendant as the Memphis City Schools Board of Education. The plaintiff has filed a motion seeking appointment of counsel. Two statutes authorize the district court to request or appoint counsel for an indigent Title VII plaintiff. Twenty-eight

Dockets.Justia.com

Case 2:06-cv-02234-JDB-dkv

Document 3

Filed 05/04/2006

Page 2 of 4

U.S.C. § 1915(d) provides that the "court may request an attorney to represent any such person unable to employ counsel."1 Similarly, under 42 U.S.C. § 2000e-5(f)(1), "upon application by the

complainant and in such circumstances as the court may deem just, the court may appoint an attorney." However, "[t]here is no constitutional or . . . statutory right to counsel in federal civil cases." Farmer a v. Haas, will 990 only F.2d 319, 323 (7th in Cir. 1993).

Generally,

court

appoint

counsel

exceptional

circumstances. Willett v. Wells, 469 F. Supp. 748, 751 (E.D. Tenn. 1977). Although "no comprehensive definition of exceptional

circumstances is practical," Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982), courts resolve this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Examining the pleadings and documents in the file, the Court analyzes the merits of the claims, the complexity of the case, the pro se litigant's prior efforts to retain counsel, and his ability to present the claims. Henry v. City of Detroit Manpower Dep't, 763 F.2d 757, 760 (6th Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985). As a general rule, counsel should be appointed in civil cases only if a litigant has made "a threshold showing of some likelihood of merit." Cooper v. A. Sargenti Co., 877 F.2d 170, 174

However, "§ 1915(d) does not authorize the federal courts to make coercive appointments of counsel" to represent indigent civil litigants. Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989).

1

2

Case 2:06-cv-02234-JDB-dkv

Document 3

Filed 05/04/2006

Page 3 of 4

(2d Cir. 1989).2 At this stage of the proceedings, before the Court has had the opportunity to assess the strength of plaintiff's case, the Court is unable to conclude that plaintiff has satisfied that standard. Moreover, a review of this complaint indicates that the case is not to so complex that the at Court this should time. exercise motion its for

discretion

appoint

counsel

The

appointment of counsel is DENIED. It is ORDERED that the Clerk shall issue process for the defendant and deliver said process to the marshal for service. Service shall be made on the defendant pursuant to Fed. R. Civ. P. 4(j)(2). A copy of this order shall be served on the defendant along with the summons and complaint. All costs of service shall be advanced by the United States. It is further ORDERED that the plaintiff shall serve a copy of every further document filed in this cause on the attorney for the defendant or on the defendant if it has no attorney. The plaintiff shall make a certificate of service on every document filed. The plaintiff shall familiarize himself with the Federal Rules of Civil Procedure and this Court's local rules.

The Second Circuit elaborated: "Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent." Id.

2

3

Case 2:06-cv-02234-JDB-dkv

Document 3

Filed 05/04/2006

Page 4 of 4

The plaintiff shall promptly notify the Clerk of any change of address or whereabouts. Failure to comply with these requirements, or any other order of the Court, may result in this case being dismissed without further notice. IT IS SO ORDERED this 4th day of May, 2006. s/ J. DANIEL BREEN UNITED STATES DISTRICT JUDGE

4