KEY v. CITY OF DETROIT (2024)

OPINION AND ORDER STAYING CASE TO LOCATE PRO BONO COUNSEL FOR PRO SE PLAINTIFF

Without key insight from a lawyer, the doors to a courthouse, meant to be open to all, can seem impenetrable. Plaintiff Kelly Royce Key faces such a barrier.

After being guided by a lawyer through the labyrinth of summary judgment, Plaintiff stands alone before the crucible of a jury trial. During a status conference on June 20, 2024, Plaintiff detailed diligent yet fruitless efforts to retain a lawyer. Recognizing the imbalance and the City's waiver of any objection, this Court will attempt to locate a pro bono lawyer to ensure that Plaintiff gets a fair trial.

I.

Plaintiff's case against the City is based on allegation that he was harassed by coworkers based on sexual orientation, leading to a hostile work environment. ECF No. 1. Plaintiff reported the harassment, then the City terminated Plaintiff's employment, allegedly in retaliation for Plaintiff's harassment complaints. Id.

Following summary judgment, the remaining two claims are narrow: retaliation under Title VII (Count III) and under Michigan's Elliot-Larsen Civil Rights Act (Count VI). ECF No. 133 at PageID.943. Both claims contend that the City unlawfully retaliated against Plaintiff for complaining about harassment, rather than for any legitimate reasons. There are genuine issues of material fact with respect to the reasons for the termination of Plaintiff's employment. See ECF No. 118 at PageID.874–81.

The next step is a jury trial, but Plaintiff has no lawyer. On June 20, 2024, a status conference was held on the record where Plaintiff articulated his challenges in securing legal representation. In sum, despite diligent efforts, Plaintiff could not obtain a lawyer for trial, and the City has waived any objection to the appointment of pro bono counsel for Plaintiff.

II.

The appointment of pro bono counsel is a discretion reserved for times when justice and due process demand it. Taylor v. Purdom, 673 F. Supp. 3d 872, 878–79 (E.D. Mich. 2023) (citing Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986) (per curiam)). Appointment of counsel is therefore warranted only if, given the difficulty of the case and the party's ability, the party (1) could not obtain justice without an attorney, (2) could not independently obtain a lawyer, and (3) would have a reasonable chance of winning with the assistance of counsel. United States v. Curney, 581 F. Supp. 3d 910, 911 (E.D. Mich. 2022) (citing Thirkield v. Pitcher, 199 F. Supp. 2d 637, 653 (E.D. Mich. 2002)); accord United States v. Wright, 596 F. Supp. 3d 967, 968–69 (E.D. Mich. 2022) (same).

Plaintiff's retaliation claims survived summary judgment, suggesting a reasonable chance of success on the merits if properly litigated. But Plaintiff is unlikely to obtain justice without the benefit of counsel; Plaintiff's efforts at self-representation, though earnest, underscore the disparity in legal acumen between a layperson and experienced municipal counsel. See, e.g., ECF Nos. 139–45. The complexity of the retaliation claims further highlights the necessity of legal representation for a fair trial, and the City's lack of objection reinforces this need.

Thus, this Court will attempt to appoint pro bono counsel for Plaintiff, staying the case for up to 90 days to facilitate this process. If unsuccessful, then the stay will be lifted and Plaintiff must be self-represented during trial. See, e.g., Boussum v. Washington, 649 F. Supp. 3d 525, 527 (E.D. Mich.), recons. denied, 655 F. Supp. 3d 636 (E.D. Mich. Feb. 8, 2023).

III. CONCLUSION

Accordingly, it is ORDERED that the case is STAYED until further order of this Court or until September 23, 2024. Notice will be sent to Plaintiff either when an attorney accepts the case or when the stay is lifted.

SUSAN K. DeCLERCQ, United States District Judge