Kucuk v. Central Washington University

Filing 22

ORDER denying Plaintiff's 14 Motion to Appoint Counsel signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SELIM UMIT KUCUK,

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CASE NO. C17-1262JLR
ORDER DENYING MOTION TO
APPOINT COUNSEL

Plaintiff,

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v.
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CENTRAL WASHINGTON
UNIVERSITY,

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Defendant.

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I.

INTRODUCTION

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Before the court is Plaintiff Selim Umit Kucuk’s motion to appoint counsel.
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(MTAC (Dkt. # 14).) Defendant Central Washington University (“CWU”) opposes the
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motion. (Resp. (Dkt. # 16).) The court has considered the motion and CWU’s response, 1
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Mr. Kucuk did not file a reply. (See generally Dkt.)

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the relevant portions of the record, and the applicable law. Being fully advised, 2 the

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court denies the motion.

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II.

BACKGROUND

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On August 21, 2017, Mr. Kucuk filed this lawsuit alleging employment

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discrimination and other claims against CWU. (See generally Mot. for IFP (Dkt. # 1);

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Compl. (Dkt. # 3).) On August 22, 2017, the court granted Mr. Kucuk’s motion for in

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forma pauperis status. (IFP Order (Dkt. # 2).)

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In his motion seeking court-appointed counsel, Mr. Kucuk states that he has

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contacted “over a dozen of [sic] lawyers” during the past three to four months. (MTAC

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at 2.) He states that “although the majority of attorneys saw a [sic] merit in [his] case,”

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they declined to accept his case because they do not take contingency fee cases. (Id.) He

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acknowledges that the Equal Opportunity Employment Commission (“EEOC”) did not

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find “reasonable cause” to believe his allegations had merit. (Id.) He does not provide

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his own statement concerning why his claims have merit. (See generally id.)

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III.

ANALYSIS

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A plaintiff has no constitutional right to appointed counsel in an employment

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discrimination suit. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir.

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1982). Nevertheless, Title VII of the Civil Rights Act of 1964 provides in pertinent part

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that:

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Upon application by the complainant and in such circumstances as the court
may deem just, the court may appoint an attorney for such complainant and

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No party requested oral argument, and the court does not deem it necessary for its
disposition of this motion. See Local Rules W.D. Wash. LCR 7(b)(4).

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may authorize the commencement of the action without the payment of fees,
costs, or security.

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42 U.S.C. § 2000e-5(f)(1)(B). Although the court possesses the authority to appoint
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counsel, the court is not obligated to appoint counsel in every employment discrimination
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case. Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991) (citing Ivey,
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673 F.2d at 269). Rather, the determination is left to the sound discretion of the district
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court. Id. The three factors relevant to the court’s determination of whether to appoint
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counsel, include: (1) the plaintiff’s financial resources; (2) the efforts made by the
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plaintiff to secure counsel on his or her own; and (3) the merits of the plaintiff’s claim.
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Johnson v. U.S. Treasury Dep’t, 27 F.3d 415, 417 (9th Cir. 1994).
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The first factor—the plaintiff’s financial resources—favors the appointment of
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counsel. Mr. Kucuk has already been granted in forma pauperis status (see IFP Order),
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and so he is unlikely to have the financial resources necessary to obtain private counsel.
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The court concludes that the second factor—the plaintiff’s efforts to secure
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counsel—is either neutral or does not favor the appointment of counsel. In Bradshaw v.
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Zoological Soc’y of San Diego, the Ninth Circuit found that a plaintiff’s efforts to contact
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more than ten attorneys demonstrated “the requisite degree of diligence . . . to secure
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counsel.” 662 F.2d 1301, 1319 (9th Cir. 1981). However, in Bradshaw, the plaintiff’s
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motion was supported by “affidavits . . . detailing her unsuccessful efforts to obtain an
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attorney.” Id. at 1303. Unlike the plaintiff in Bradshaw, Mr. Kucuk does little to explain
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or detail his efforts. In his motion, Mr. Kucuk states that he has “contacted over a dozen
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of [sic] lawyers” within the “last 3-4 months,” but that all of the attorneys declined to
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take his case because they did not accept cases on a contingency fee basis. (MTAC at 2.)

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He does not detail any efforts to locate an attorney who specifically handles employment

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or contingency fee cases, and he does not indicate whether he checked with any

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associations or entities that could assist him in locating an attorney to represent him on a

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pro bono or contingency fee basis. See Shepherd-Sampson v. Paratransit Servs., No.

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C13-5888 BHS, 2014 WL 3728768, at *2 (W.D. Wash. July 25, 2014) (denying motion

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to appoint counsel in part because the plaintiff did “little to explain her efforts to secure

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her own counsel”). Thus, although with sufficient explanation Mr. Kucuk’s efforts to

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contact over a dozen lawyers might satisfy “the requisite degree of diligence” to secure

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counsel, Bradshaw, 662 F.2d at 1319, it does not here. The court acknowledges that Mr.

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Kucuk need not “‘exhaust the legal directory’ as a prerequisite to the appointment of

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counsel.” Id. Nevertheless, for the court to conclude that Mr. Kucuk “has done all that

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may reasonably be expected,” more detail than what is provided concerning his search is

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necessary.

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Finally, the court concludes that the last factor—the merit of plaintiff’s claim—

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also does not favor the appointment of counsel. Mr. Kucuk acknowledges that the EEOC

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did not find “reasonable cause” to believe his allegations have merit. (MTAC at 2.) The

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Ninth Circuit has stated that “[i]f the agency has found ‘reasonable cause,’ . . . the claim

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should ordinarily be deemed meritorious for purposes of appointment of counsel, and the

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court need make no further inquiry with respect to that subject.” Bradshaw, 662 F.2d at

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1309. However, “an EEOC determination that no reasonable cause supports the

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plaintiff’s claim should be approached somewhat differently.” Id. at 1309 n.20.

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Although it is still relevant, the refusal to appoint counsel solely because the EEOC finds

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no reasonable cause to believe that a claim exists would be error. See id.; see also Caston

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v. Sears, Roebuck & Co., 556 F.2d 1305, 1308-09 (5th Cir. 1977) (concluding that EEOC

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finding of no reasonable cause is highly probative but not determinative); Harris v.

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Walgreen’s Distrib. Ctr., 456 F.2d 588, 590 (6th Cir.1972) (concluding that it is error for

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the district court to rely solely upon an EEOC finding of no probable cause). Although

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the court takes note of the EEOC’s negative determination, the court does not rely solely

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on that determination in concluding that the third factor does not favor the appointment of

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counsel. Here, in addition to acknowledging the EEOC’s finding of no reasonable cause,

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Mr. Kucuk fails to provide any statement or rationale of his own concerning the merits of

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his claims. (See generally MTAC.)

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Further, the court has reviewed his complaint and the relevant portions of the

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record and independently concludes that the merits of Mr. Kucuk’s claims do not favor

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the appointment of counsel. The crux of Mr. Kucuk’s claims is that CWU discriminated

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against him based on his national origin when it did not hire him because his doctoral

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degree is not from an accredited university. (See generally Am. Compl. (Dkt. # 19).) In

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the context of this motion, the court does not make any determination concerning the

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ultimate disposition of Mr. Kucuk’s claims. Nevertheless, as CWU points out, courts

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have determined that such accreditation requirements are not discriminatory. See, e.g.,

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Pouyeh v. UAB Dep’t of Ophthalmology, 625 F. App’x 495, 497 (11th Cir. 2015)

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(“Rejecting applicants based on whether the medical schools they attended were

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accredited by the AMA or the CMA is not discrimination based on national origin.”); see

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also Maceluch v. Wysong, 680 F.2d 1062, 1065 (5th Cir. 1982) (explaining that a policy

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“based upon the locality of the education received” does not discriminate based on

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alienage because “[s]ubstantial numbers of Americans attend medical schools abroad,

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just as some foreigners attend medical schools in the United States”). Finally, the court

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notes that Mr. Kucuk’s complaint does not raise complex legal or factual issues and,

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based on his filings with the court, Mr. Kucuk appears reasonably capable of representing

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himself pro se. Accordingly, the court concludes that the merits of Mr. Kucuk’s claims

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do not favor the appointment of counsel.

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On balance, the court concludes that the factors do not favor the appointment of

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counsel, and the court denies Mr. Kucuk’s motion. See Ivey, 673 F.2d at 269 (concluding

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that district court did not abuse its discretion by denying plaintiff’s motion to appoint

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counsel based solely on the court’s determination that the plaintiff’s case lacked

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sufficient merit to warrant the appointment of counsel). The court advises Mr. Kucuk that

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he must represent himself pro se unless and until he is able to retain counsel and counsel

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enters an appearance on his behalf in this case. Materials to assist pro se litigants are

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available on the United States District Court for the Western District of Washington’s

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website. Nevertheless, pro se litigants are responsible for complying with all of the

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applicable deadlines and court rules, including the Federal Rules of Civil Procedure, and

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the Western District of Washington’s Local Rules, which can also be found on the

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Western District of Washington’s website. See, e.g., Solis v. McKessen, 465 F. App’x

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709, 710 (9th Cir. 2012) (“Pro se litigants must follow the same rules of procedure that

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govern other litigants.”).

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IV.

CONCLUSION

Based on the foregoing analysis, the court DENIES Mr. Kucuk’s motion to
appoint counsel (Dkt. # 14).
Dated this 23rd day of January, 2018.

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A

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JAMES L. ROBART
United States District Judge

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