Barker v. Utah Department of Environmental Quality et al
Filing
14
MEMORANDUM DECISION and ORDER denying 6 Motion to Appoint Counsel. Plaintiff is instructed to respond to Defendants' Motion to Dismiss. Signed by Magistrate Judge Brooke C. Wells on 11/5/2018. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Edith Barker,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
v.
Case No. 1:18-cv-68 DB
Utah Department of Environmental Quality et
al.
Defendants.
District Judge Dee Benson
Magistrate Judge Brooke Wells
On June 14, 2018, the court granted Ms. Barker’s request to proceed in forma pauperis. 1
Plaintiff now seeks the appointment of counsel. 2 A party in a civil action has no constitutional
right to appointment of counsel. 3 After reviewing Plaintiff’s motion and the allegations in the
case, the court will deny the motion.
Plaintiff brings a Title VII case alleging retaliation and violation of her rights under the
Equal Protection Clause. Allegedly Defendants “intentionally chose to create and foster a hostile
work environment.” 4 A litigant asserting employment discrimination claims has no constitutional
right or statutory right to appointed counsel. 5 “Title VII of the Civil Rights Act of 1964,
however, provides that the district court may, in its discretion, appoint counsel for a plaintiff in
1
ECF No. 2.
2
ECF No. 6.
3
See Durre v. Dempsey, 869 F.2d 543, 547, 1989 WL 16317 (10th Cir. 1989); Bethea v. Crouse, 417 F.2d 504, 505
(10th Cir. 1969) (“We have often said, and it seems to be universally agreed, that no one has a constitutional right to
assistance of counsel in the prosecution or defense of a civil action.”).
4
Complaint p. 2.
5
See Poindexter v. FBI, 737 F.2d 1173, 1179 (D.C.Cir. 1984).
an employment discrimination action.” 6 The Tenth Circuit has identified four factors to consider
when determining whether to appoint counsel in a Title VII case. “Before counsel may be
appointed, a plaintiff must make affirmative showings of (1) financial inability to pay for
counsel, (2) diligence in attempting to secure counsel and (3) meritorious allegations of
discrimination.” 7 A fourth factor, the plaintiff’s capacity to present the case without counsel, is
to be considered in close cases. 8 Notwithstanding Congress’s “special … concern with legal
representation in Title VII actions” 9 Plaintiff has failed to make the required affirmative
showings. For example, there is no record of Plaintiff attempting to secure counsel and even if
those attempts had been made, it appears Plaintiff has the capacity to present the case adequately
without counsel because she is an experienced litigant. 10
Accordingly, Plaintiff’s Motion for Appointment of Counsel is DENIED and Plaintiff is
instructed to respond to Defendants’ Motion to Dismiss.11
DATED this 5 November 2018.
Brooke C. Wells
United States Magistrate Judge
6
Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1421(10th Cir. 1992) (noting factors that are relevant in
determining whether to appoint counsel for a civil litigant in a Title VII action).
7
Id.
8
See id.
9
Jenkins v. Chem. Bank, 721 F.2d 876, 879 (2nd Cir. 1983).
10
For example, see Barker v. Utah Department of Environmental Quality et al. case no. 1:13-cv-89 CW D. Utah.
11
ECF No. 13.
2
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