MICHAEL ANTHONY MILES v. GENERAL MANAGERS ET AL (2023)

ORDER

Before the Court is the Plaintiff's Motion to Appoint Counsel. (R. Docs. 1, 4).

I. Background

Michael Anthony Miles (“Plaintiff”) asserts claims of age, race, and disability discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12102 et seq. (“ADA”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”). (R. Doc. 3). Plaintiff has not filed an actual Complaint. Instead, Plaintiff filed a Notice of Right to Sue letter issued by the U.S. Equal Employment Opportunity Commission (“EEOC”) (R. Doc. 3),¹ an Application to Proceed In Forma Pauperis (R. Doc. 2),² and the instant Motion to Appoint Counsel (R. Doc. 1).

Plaintiff appears to be a Black male, aged 53, with the disability of visual impairment (retinopathy). (R. Doc. 3 at 4). It appears that Plaintiff was hired as a Housekeeper/Helper by Sandpiper Hospitality around February 2021. (R. Doc. 3 at 6, 32). On or about June 14, 2022, he was “informed by the General Manager, that Ms. Candace Reynolds, Human Resources, stated that [he] was not to clock in and that [he] would need to provide a doctor's clearance to return to work.” (R. Doc. 3 at 32). It appears that Plaintiff is asserting that he was not provided accommodations for his retinopathy, or that he was terminated by his employer based on failure to provide medical documentation of this disability. (R. Docs. 3 at 26, 32). It is unclear what allegations Plaintiff seeks to allege with respect to this race or age.

II. Law and Analysis

A. Legal Standards

The enforcement provision of Title VII provides that: “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 may authorize the commencement of the action without the payment of fees, costs, or security.” 42 U.S.C. § 2000e-5(f)(1). There is no absolute right to appointed counsel under Title VII. Rather, the decision to appoint counsel lies within the “considerable discretion” of the court. Harris v. Sullivan, 50 F.3d 1032, at *1 (5th Cir. 1995) (unpublished).

“Case law regarding the appointment of counsel under the ADA, especially in the Fifth Circuit, is sparse.” Mapes v. Texas, No. 18-00170, 2018 WL 9786073, at *2 (W.D. Tex. Oct. 1, 2018). “However, other courts utilize the same analysis for appointment of counsel requests in ADA cases as in Title VII cases.” Id. (citing Filec v. Chicago Transit Authority, 156 F.R.D. 166, 167-68 (N.D. Ill. 1994)). “The ADA incorporates several provisions of Title VII, thereby affording courts discretion to appoint counsel.” Id. (citing 42 U.S.C. § 12117) (incorporating the “powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8 and 2000e-9 of this Title [42]”).

“Unlike Title VII, the ADEA contains no such provision that expressly authorizes appointment of counsel.” Weathersby v. Ensign Drilling, No. 20-02450, 2020 WL 5441452, at *1 (S.D. Tex. Sept. 10, 2020).

“[T]he appointment of counsel in a civil case is a privilege and not a constitutional right.” Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). When a plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915, the court “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Under § 1915(e)(1), the party must demonstrate “exceptional circumstances” to justify the court appointing counsel to represent her. Butler v. Cole, 93 Fed. App'x 600 (5th Cir. 2004). When determining whether a request for appointment of counsel should be granted, the court considers the following factors: (1) the party's financial ability to retain counsel, (2) the efforts made by the party to obtain counsel, and (3) the merits of the claims or defenses. See Burton v. Texas Parks and Wildlife Dept., No. 09-298, 2009 WL 1231768, *3 (W.D. Tex. May 1, 2009) (citing Gonzalez v. Carlin, 907 F.2d 573, 580 (5th Cir. 1990)). Courts also consider the party's ability under the circumstances of the case to present the case without the assistance of counsel. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (identifying the following four factors for consideration: “(1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is in a position to investigate adequately the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence in cross examination.”) (citations omitted). The decision whether to appoint counsel rests within the sound discretion of the trial court. Gonzales, 907 F.2d at 579.

B. Analysis

Having considered the appropriate factors, the Court will deny Plaintiff's motion to appoint counsel.

The Court observes that Plaintiff has limited financial ability to retain counsel. That said, Plaintiff has demonstrated no effort to pursue a contingent fee or pro bono arrangement with prospective counsel. Accordingly, this factor is neutral.

Before counsel may be appointed, a claimant must make a reasonably diligent effort to secure counsel without the court's assistance. “A reasonably diligent attempt to secure counsel means, at a minimum, speaking to an attorney about the merits of the case and pursuing a contingent fee arrangement.” Weber v. Holiday Inn, 42 F. Supp. 2d 693, 698 (E.D. Tex. 1999); see also Smith v. Baton Rouge Radiology Group, No. 12-400, 2013 WL 3246142, at *2 (M.D. La. June 24, 2013) (plaintiff failed to make diligent effort to obtain counsel where she contacted several attorneys, but failed to “state whether or not she had inquired about the possibility of a contingency fee agreement with any attorney”).

Here, Plaintiff confirms that he has not talked with any attorneys about handling his claims, although he has attempted to contact “7 attorneys but no one called [him] back.” (R. Doc. 1 at 5). Plaintiff does not identify any of the attorneys he has sought to retain, when he attempted to retain those attorneys, whether he spoke to any support staff for the attorneys, and whether and to what extent he explained the nature of his action. This factor does not support the appointment of counsel.

Finally, Plaintiff has not filed an actual pleading containing any allegations. Instead, Plaintiff has submitted a right-to-sue letter. In determining whether the merits of Plaintiff's claims of discrimination weigh in favor of appointment of counsel, courts have looked to the EEOC's determination to assist in considering whether a plaintiff's claim is reasonable. See Poindexter v. F.B.I., 737 F.2d 1173, 1187 (D.C. Cir. 1984). While the right-to-sue letter does weigh in favor of finding that Plaintiff's discrimination claims are reasonable, it remains that Plaintiff has not filed an actual Complaint detailing his allegations. See Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984) (the filing of a right-to-sue letter is not the same as filing a “complaint” to commence a civil action under Rule 3). The Court is unable to weigh the merits of Plaintiff's claims given that there is no Complaint in the record.

Finally, to the extent that Plaintiff asserts that he has a limited knowledge of the law, this is true of nearly every pro se litigant. For this reason, pro se pleadings are held to less stringent standards than formal pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972).

In sum, Plaintiff has not demonstrated any “exceptional circumstances” that merit the appointment of counsel in this action.

For the foregoing reasons,

IT IS ORDERED Plaintiff's Motion to Appoint Counsel (R. Docs. 1, 4) is DENIED.

Signed in Baton Rouge, Louisiana, on April 20, 2023.

FOOTNOTES

1.   The right-to-sue letter is signed January 1, 2023. (R. Doc. 3 at 1). It is unclear when Plaintiff received the letter.

2.   The Court granted in forma pauperis status by separate order. (R. Doc. 5).

RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE