Roker v. Twentieth Century Fox et al

Filing 38

ORDER denying #33 Motion to Appoint Counsel ; granting #34 Motion to Effect Service. Signed by Judge Samuel H. Mays, Jr on 11/18/2021.(Mays, Samuel)

Case 2:21-cv-02411-SHM-tmp Document 38 Filed 11/18/21 Page 1 of 5

PageID 10

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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DAMOND J. ROKER,
Plaintiff,
v.
TWENTIETH CENTURY FOX;FOX
BROADCASTING COMPANY;FOX
ENTERTAINMENT GROUP;NEWS
CORPORATION;COX MEDIA GROUP
NORTHEAST, LLC;COX MEDIA
GROUP, INC.;KIM GUTHRIE;
BRETT FENNELL; JEAN C.
FUENTES,

No. 21-cv-2411

Defendants.
ORDER

Before the Court are two motions:

Plaintiff Damond J.

Roker’s (“Roker”) Motion for Appointment of Counsel (D.E. 33.)
and Roker’s Motion to Effect Service Upon the Defendants.
34.)

(D.E.

For the following reasons, Roker’s Motion for Appointment

of Counsel is DENIED and his Motion for Service is GRANTED.
I.

Background
From

2002

to

2004,

Roker

was

employed

as

a

broadcast

photojournalist for local news station WHBQ-TV Fox 13 TV (“Fox
13”).

(D.E. 32.)

Fox 13 is affiliated with Twentieth Century

Fox, FOX Entertainment Group, Inc., Fox Broadcasting Company,

Case 2:21-cv-02411-SHM-tmp Document 38 Filed 11/18/21 Page 2 of 5

and News Corporation (collectively “Fox”).
owned by Cox Media Group.
complaint

against

Fox

(Id.)
13

(Id.)

PageID 11

Fox 13 is

In August 2003, Roker filed a

with

the

U.S.

Equal

Employment

Opportunity Commission (“EEOC”) claiming racial discrimination
in violation of Title VII of the Civil Rights Act.
parties agreed to a settlement in January 2004.
settlement contained a non-disparagement clause.

(Id.)
(Id.)

The
The

(Id.)

Roker later founded Redemptive Life Church, Inc. (“RLC”),
a Tennessee-based religious non-profit.

(Id.)

He was a pastor

at RLC, and his services were televised.

Roker was also a guest

on local and nationally syndicated Christian television and radio
broadcasts.
In 2016, Roker was arrested on charges of aggravated rape
and aggravated assault.
(Id.)

(Id.)

Roker pled guilty to the charges.

Fox 13, as part of its coverage, detailed Roker’s 2006

arrest for domestic assault.

(Id.)

Roker believes that Fox 13

knowingly reported a “false and misleading” story because it
failed to report that the 2006 charges were dropped in 2008,
after the victim had withdrawn her statement.

(Id.)

Roker

initiated an action with the EEOC against Fox and Fox 13,
claiming race discrimination and retaliation.
issued a 90-day Right to Sue Letter.

(Id.)

(Id.)

The EEOC

Roker filed suit in

the Southern District of New York, asserting, inter alia,

Title

VII claims, breach of contract, defamation, libel, and negligent
2

Case 2:21-cv-02411-SHM-tmp Document 38 Filed 11/18/21 Page 3 of 5

infliction of emotional distress.

PageID 12

He names Fox, Fox 13, Cox

Media, Cox employees Kim Guthrie and Brett Fennell, and Fox
employee Jean C. Fuentes as Defendants.

On July 16, 2020, Roker

applied to proceed in forma pauperis, and on August 7, 2020, the
Southern District of New York granted his request.

(D.E. 4;

D.E. 8.)
On June 8, 2021, Roker filed the present motions.
33;

D.E. 34.)

(D.E.

On June 9, 2021, the Southern District of New

York transferred the case to the Western District of Tennessee
under

28 U.S.C. §§ 1404(a) and 1406(a).

currently

incarcerated

Tennessee.
II.

in

Northwest

(D.E. 35.)

Correctional

Roker is

Complex

in

(Id.)

Standard of Review
A.

Appointment of Counsel

The Court has discretion to appoint counsel to plaintiffs
proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1) (“The court
may request an attorney to represent any person unable to afford
counsel.”)
B.

Service of Process

Under 28 U.S.C. § 1915, officers of the court shall issue
and

serve

all

process

for

plaintiffs

proceeding

in

forma

pauperis.

See Reed-Bey v. Pramstaller, 607 F. App’x 445, 450

(6th

2015)

Cir.

(“When

a

plaintiff

is

proceeding

in

forma

pauperis, the district court bears the responsibility for issuing
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Case 2:21-cv-02411-SHM-tmp Document 38 Filed 11/18/21 Page 4 of 5

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the plaintiff's process to a United States Marshal, who must
effect

service

upon

the

defendants

properly identified them.”);

once

the

plaintiff

has

Byrd v. Stone, 94 F.3d 217, 219

(6th Cir. 1996) (“officers of the court shall issue and serve
all process when a plaintiff is proceeding in forma pauperis”)
(internal quotations omitted);

see also Fed. R. Civ. P. 4(c)(3)

(“At the plaintiff's request, the court may order that service
be made by a United States marshal or deputy marshal or by a
person specially appointed by the court.

The court must so order

if the plaintiff is authorized to proceed in forma pauperis under
28 U.S.C. § 1915[.]”).
III. Analysis
A. Appointment of Counsel
Appointment of counsel in a civil case must be justified by
exceptional circumstances.
(6th

Cir.

1993).

In

Lavado v. Keohane, 992 F.2d 601, 606
determining

whether

exceptional

circumstances exist, courts examine the type of case and the
plaintiff’s ability to represent himself, which often involves
a determination of the complexity of the factual and legal issues
involved.
Appointment

Id. (internal citations and quotations omitted).
of

counsel

is

not

appropriate

when

a

pro

se

litigant’s claims are frivolous or when his chances of success
are slim.

Id.

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Case 2:21-cv-02411-SHM-tmp Document 38 Filed 11/18/21 Page 5 of 5

There

are

currently

no

exceptional

circumstances

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that

warrant appointment of counsel. Roker has a slim chance of
success on many of his claims.
himself thus far.
B.

He has adequately represented

Roker’s Motion for Appointment is DENIED.

Service of Process

As a plaintiff proceeding in forma pauperis, Roker is
entitled to service of process made by a United States Marshal.
28 U.S.C. § 1915(d).

He must take reasonable steps to “identify

for the court the defendants named in the complaint.”
F.3d at 219.

Byrd, 94

Roker has provided names and addresses for all

Defendants named in the Third Amended Complaint.

(D.E. 32.)

He

has taken reasonable steps to identify the Defendants in this
case.

IV.

His Motion for Service of Process is GRANTED.

Conclusion
For the foregoing reasons, Roker’s Motion for Appointment

of Counsel is DENIED and his Motion for Service of Process is
GRANTED.

So ordered this 18th day of November, 2021.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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