Ray v. Kroger Store #734 et al

Filing 5

OPINION AND ORDER denying 4 Plaintiff's Motion to Appoint Counsel.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES E. RAY,
Plaintiff,
VS.
KROGER STORE #734 AND KROGER,
TEXAS, L.P.,
Defendant.

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CIVIL ACTION H-12-3562

OPINION AND ORDER
Pending before the Court in the above referenced cause,
alleging employment discrimination based on race under Title VII,
42 U.S.C. § 2000e et seq., is pro se Plaintiff Charles E. Ray.’s
motion for appointment of counsel (instrument #4).
Under 28 U.S.C. § 1915(e)(1), “The court may request an
attorney

to

represent

any

person

unable

to

afford

counsel.”

Nevertheless, there is no automatic right to appointment of counsel
in a civil case, and the court has considerable discretion in
determining whether to do so.

Jackson v. Dallas Police Dep’t, 811

F.2d 260, 261 (5th Cir, 1986); Salmon v. Corpus Christi Indep. Sch.
Dist., 911 F.2d 1165, 1166 (5th Cir. 1990).

An indigent civil

litigant does not have an automatic right to appointed counsel
absent “exceptional circumstances.”

Norton v. E.U. Dimazana, 122

F.3d 286, 293 (5th Cir. 1997); Akasike v. Fitzpatrick, 26 F.3d 510,
512 (5th Cir, 1994).

A court may appoint counsel in a civil case

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if doing so would advance the proper administration of justice.
Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).

The

court may consider the following factors in deciding whether
exceptional
present

and

circumstances
whether

justifying

appointed

such

counsel

an

would

appointment

are

facilitate

the

administration of justice: (1) the complexity of the suit; (2) the
ability of the indigent litigant to present the case; (3) the
litigant’s ability to investigate the case; and (4) the skill
required

to

litigate

the

case

Chancellor, 691 F.2d at 212-13.

before

the

court.

Ulmer

v.

As the Fifth Circuit recently

stated, “[E]very litigant benefits by having an attorney.

However

the burden is on the plaintiff to demonstrate that, unique from
other pro se litigants, he will have particular difficulty in
investigating and presenting his case such that his situation
justifies the special benefit of having counsel appointed to
represent him.”

Margin v. Social Security Administration, Civ. A.

No. 08-4605, 2009 WL 3673025, *2 (5th Cir. Oct. 28, 2009).
As a threshold matter, Plaintiff, who is still employed by
Kroger, has not filed in forma pauperis nor provided evidence of
indigency.

Nor has he made any showing that he would have

particular difficulty in investigating and presenting his case.
The Court finds no exceptional circumstances in the instant case to
warrant appointment of counsel.

The issue in the case is not

complex, and Plaintiff has adequately explained the nature of his

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grievance in his complaint and exhibits (#1 and 2).

Accordingly,

the Court
ORDERS that Plaintiff’s motion for appointment of counsel is
DENIED.
SIGNED at Houston, Texas, this 15th day of January, 2013.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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