Kreucher v. Texas Department of Criminal Justice

Filing 9

ORDER DENYING 8 Motion to Appoint Counsel. Signed by Judge Robert Pitman. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
WILLOW ANITA KREUCHER,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, JAIME MARTINEZ, and
NEILYN NAVARRO,
Defendants.

1:17-cv-339-RP

ORDER
Before the Court is Plaintiff Willow Anita Kreucher’s Motion for Appointment of Counsel,
filed May 24, 2017. (Dkt. 8). For the following reasons, the Court finds that the motion should be
denied.
When considering a motion for the appointment of counsel, a court examines: (1) the
plaintiff’s efforts to obtain counsel; (2) the plaintiff’s financial ability to retain counsel; and (3) the
merits of the plaintiff’s claims. Gonzalez v. Carlin, 907 F.2d 573, 580 (5th Cir. 1990). Courts may also
consider the plaintiff’s ability, under the circumstances of the case, to present his or her case without
the assistance of an attorney. Oviedo v. Lowe’s Home Improvement, Inc., 184 F. App’x 411, 412 (5th Cir.
2006). There is no absolute right to the appointment of counsel. Thomas v. Norris, No. 1:07-CV-573,
2008 WL 859190, at *2 (E.D. Tex. Mar. 28, 2008).
As to the first factor, Plaintiff’s motion indicates that she has contacted around four law
firms and three legal aid organizations about the possibility of securing representation. According to
Plaintiff, she was either unable to afford their services or the organization lacked resources to handle
her case. Because Plaintiff appears to have diligently sought representation, this factor weighs
slightly in favor of appointing counsel.

Turning now to the second factor, Plaintiff appears to lack the resources to pay for an
attorney’s services. She was previously granted leave to proceed in forma pauperis in this matter. (See
Order, Dkt. 3). Although she has secured employment since that time, the record suggests that her
current income still falls below her monthly expenses. On the other hand, Plaintiff holds a nonnegligible amount in stock as well as a small amount in savings. Since these amounts are likely
necessary to cover the gap between Plaintiff’s income and expenses, they do not advise against the
appointment of counsel.
Finally, the Court must evaluate the merits of Plaintiff’s claims. It appears that Plaintiff
asserts two primary claims: retaliation in violation of the Americans with Disabilities Act (“ADA”),
28 U.S.C. §§ 12101 et seq., and wrongful termination for her whistleblowing activities. Each of these,
however, appears unlikely to succeed. State agencies, such as the Defendant here, are generally
immune from liability under the ADA. See Dottin v. Tex. Dep’t of Criminal Justice, 627 F. App’x 397
(5th Cir. 2015) (per curiam) (affirming dismissal of ADA retaliation claim on grounds of state
sovereign immunity). Even in the absence of sovereign immunity, Plaintiff’s allegations leave vague
certain necessary elements of a retaliation claim, including what conduct constituted protected
activity and whether there was a causal connection between that activity and the alleged adverse
actions. See Swanson v. Aegis Commc’ns Grp., Inc., No. 3-09-CV-31-D, 2010 WL 1779666, at *3 (N.D.
Tex. Mar. 22, 2010) (listing necessary elements of ADA retaliation claim).
The Court likewise doubts that Plaintiff may maintain a claim under the Texas
Whistleblower Act, Tex. Gov’t Code § 554.004. 1 First, the Act only protects individuals who report
violations of a state or federal statute, a local ordinance, or a rule promulgated under a statute or
1

Plaintiff does not specifically identify this statute as the basis for her claim. However, the Court
assumes from her reference to “whistleblowing” that this is the relevant statute. Though a broader
federal statute exists to protect whistleblowers, its protection is limited to federal employees. See
5 U.S.C. §§ 1221(a); 2015(a); 2302(b)(8). Plaintiff was an employee of a state agency and thus does
not enjoy the federal statute’s protection.
2

ordinance, and it is not clear from Plaintiff’s allegations that the safety issues she reported fall within
any of these categories. See id. §§ 554.001, 554.002. Second, it is not clear from Plaintiff’s pleadings
that she has complied with the prerequisites to suit under the statute, or that she has filed her claim
within the applicable limitations period. See id. §§ 554.005, 554.006. Finally, and most fundamentally,
the Texas Whistleblower Act’s waiver of sovereign immunity does not extend to suits brought in the
federal courts. See id. § 554.0035; Martinez v. Tex. Dep’t of Criminal Justice, 300 F.3d 567, 575–76 (5th
Cir. 2002) (“[W]e hold that, under this Act, Texas has not waived its Eleventh Amendment
immunity in federal court.”). In other words, Plaintiff may pursue her whistleblower claims against
TDCJ only in state court.
In light of the weakness of Plaintiff’s claims and the lack of jurisdiction to adjudicate them in
the absence of Defendant’s waiver of sovereign immunity, the Court’s evaluation of the merits of
Plaintiff’s claims weighs heavily against the appointment of counsel. Considering this along with the
other relevant factors, the Court will decline to appoint counsel for Plaintiff in this matter.
Accordingly, Plaintiff’s Motion for Appointment of Counsel is hereby DENIED. (Dkt. 8).
SIGNED on June 12, 2017.
_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

3