UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
July 23, 2012
LINWOOD A. WILLIAMS, JR., PLAINTIFF,
COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR D.C., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Linwood A. Williams, Jr. sues the Court Services and Offender Supervision Agency for the District of Columbia ("CSOSA") and three agency officials alleging sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Williams has moved for appointment of counsel and to proceed in forma pauperis ("IFP"). Williams' motion to proceed in forma pauperis will be granted because Williams qualifies for IFP status. Williams' motion for appointment of counsel will be denied because Williams has not demonstrated that appointing counsel is warranted.
Williams served as a Supervisory Community Supervision Officer at CSOSA and alleges that the agency retaliated against him and ultimately terminated him in response to complaints that Williams filed against the agency. Williams appealed his termination to the Merit Systems Protection Board ("MSPB"), and an MSPB administrative judge affirmed the agency action and denied Williams' petition to reconsider. A January 9, 2012 memorandum opinion and order granted Williams' motion for reconsideration of an earlier order that had dismissed the complaint as untimely. Discovery is now ongoing and Williams has moved for IFP status and appointment of counsel.
I. MOTION TO PROCEED IFP
In general, courts determine whether to allow a litigant to proceed in forma pauperis on a case-by-case basis. Hurt v. Social Security Admin., 544 F.3d 308, 309 (D.C. Cir. 2008) (per curiam). In forma pauperis status is appropriate if a litigant demonstrates that paying for the costs of the suit would require him to give up basic necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). A litigant need not be "absolutely destitute" to qualify for IFP status. Id. In this case, Williams has asserted that he "does not have the money to pay for an attorney" (Pl.'s Mot. to Appoint Counsel ("Pl.'s Mot.") at 1) and "cannot afford to hire an attorney" (Pl.'s Reply and Mot. for IFP status ("Pl.'s Reply") at 3). Williams submitted a financial affidavit that shows that his monthly income of around one thousand dollars is far outstripped by his debts and monthly bills. (Pl.'s Am. Mot. to Proceed IFP, Ex. 1, Financial Affidavit.) These financial circumstances are sufficient to qualify Williams for IFP status.
II. MOTION FOR APPOINTMENT OF COUNSEL
IFP status does not automatically entitle a litigant to appointed counsel. "The law is well established that there is no constitutional right to appointment of counsel in a civil case, and no indigent civil litigant is guaranteed counsel." Brown v. Children's Nat'l Med. Ctr., 773 F. Supp. 2d 125, 140 (D.D.C. 2011) (internal quotation marks and citations omitted); see also Dantzler v. EEOC, 810 F. Supp. 2d 312, 317 (D.D.C. 2011) (recognizing that Title VII does not create a statutory right to appointment of counsel). Under 28 U.S.C. § 1915, courts have discretion to appoint counsel to represent an indigent pro se party. 28 U.S.C. § 1915; see also 42 U.S.C. § 2000e-5(f)(1) (providing that "[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney"). The following factors guide the exercise of courts' discretion:
(i) the nature and complexity of the action;
(ii) the potential merit of the pro se party's claims;
(iii) the demonstrated inability of the pro se party to retain counsel by other means; and
(iv) the degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel.
Local Civil Rule 83.11(b)(3).
A. Nature and complexity of the action "[I]f a case will involve conflicting or complex testimony, or difficult legal issues, representation by counsel may be essential." Poindexter v. FBI, 737 F.2d 1173, 1189 (D.C. Cir. 1984). However, while by their nature discrimination cases are likely to involve some conflicting testimony, a discrimination claim does not automatically require the appointment of counsel. See Robinson-Reeder v. Am. Council on Educ., 626 F. Supp. 2d 11, 16 (D.D.C. 2009) (finding that appointment is not warranted in a discrimination case where it "does not appear to be a case that will involve conflicting or complex testimony, or difficult legal issues [and] the factual issues appear to be uncomplicated and the law in this area is clearly settled") (internal quotation marks omitted).
In this case, Williams contends that he requires the assistance of counsel because of the complexity of the gender discrimination claims, the breadth of discovery he alleges that he will be required to conduct, and the fact that he anticipates opposition from the government in the form of motions for summary judgment or refusal to disclose the documents he requests. (Pl.'s Mot. at 1-2.) The action appears fairly straightforward, though, and there is no indication that Williams' case is more complex than many of the straightforward actions filed in this court under Title VII, an area where the law is fairly settled. Moreover, Williams has represented himself fairly ably in proceedings to date. Although the plaintiff's pleadings are not always perfectly clear, he has demonstrated an ability to communicate with the court and to file appropriate motions. Indeed, in this case, he prevailed on an opposed motion for reconsideration of an order granting CSOSA's motion to dismiss. Williams also has prior experience litigating the issues in this case from filing a number of whistleblower complaints against CSOSA in 2002 and 2003. (Compl. at 3.) In addition, he appealed to the MSPB the termination that gives rise to the instant allegations of discrimination, suggesting that he now possesses a familiarity with the evidence and legal issues attendant to his claim. On the basis of these facts, Williams appears prepared to be an effective advocate on his own behalf, and that appointment of counsel from our not unlimited pool of pro bono volunteers is not necessary for adequate representation. See Jennings v. Sallie Mae, Inc., 358 F. A'ppx 719, 721 (7th Cir. 2009) (finding no abuse of discretion where district court denied motion for the appointment of counsel where the plaintiff in a Title VII case was "literate, ha[d] filed lawsuits in the past, ha[d] personal knowledge of the facts relevant to her claims, amended her complaint in accordance with the district court's directions, and submitted documents in support of her claims.")
B. Potential merit of the claims
The present record further does not reflect the level of merit in plaintiff's claims that would warrant appointment of counsel. See Poindexter, 737 F.2d at 1187 (holding that courts can deny a plaintiff's motion to appoint counsel if the plaintiff's case lacks apparent merit). Although the plaintiff's complaint has survived a motion to dismiss, the defendant moved for dismissal on the ground that the complaint was not timely, not on any substantive grounds. Some indication of the potential merit of Williams' claims may be gleaned from the Merit Systems Protection Board's lengthy decision on Williams' appeal of his termination. (See Compl., Ex. 1, Merit Systems Protection Board Initial Decision.)
The MSPB decision analyzed Williams' various theories of discrimination and found that Williams had not set forth adequate supporting evidence. With regard to his claim of disparate treatment in comparison to that of female employees, the Board noted that Williams had conceded that none of the alleged "comparable employees" had engaged in conduct similar to Williams' so as to serve as an appropriate comparison. (Id. at 44.) The Board further found that Williams provided insufficient evidence that his male gender motivated his supervisors to stereotype him. (Id. at 45.) In particular, the Board noted that Williams' relationship with one supervisor "started out well" as a mentoring relationship but "deteriorated" as the supervisor perceived that Williams' performance was deficient. (Id.) Finally, the Board found that Williams' retaliation claim was not supported because it was "clear" that Williams' supervisor "had problems with [Williams'] performance" before Williams filed a grievance regarding his treatment by the agency. (Id. at 47.) The Board's decision is not dispositive of the instant action and Williams' complaint alleges additional grounds for finding unlawful discrimination and retaliation that do not appear to have been raised before or addressed by the Board. Nonetheless, the Board's decision represents the considered judgment of a neutral arbiter that the discrimination and retaliation claims that were presented lacked an adequate basis in evidence. The Board, moreover, did not express that the evidence was in equipoise or otherwise difficult to weigh. Although it is not dispositive, the prior administrative decision thus casts some doubt on the strength of Williams' present claims.
C. Demonstrated inability to retain counsel by other means Courts may decline to appoint counsel if the plaintiff has not made a "reasonably diligent effort" to obtain counsel on his own. Poindexter, 737 F.2d at 1188 (quoting Bradshaw v. Zoological Soc'y of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981)). In order to demonstrate reasonable diligence, "the plaintiff need not 'exhaust the legal directory before a court could appoint him an attorney.'" Poindexter, 737 F.2d at 1188 (quoting Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir. 1977)). Williams' filing suggests that he approached one law firm to represent him. (Pl.'s Reply at 1.) While Williams' efforts need not have been exhaustive, one approach to one firm falls short of demonstrating an inability to secure counsel on his own.
D. Interests of justice
The present action is not complicated and Williams has shown over the course of the proceedings that he is capable of adequately representing himself. At this juncture, the merits of Williams' claims are uncertain and Williams has not shown ample diligence in finding counsel on his own. Williams' pro se status has not placed him at a gravely unfair disadvantage, and no novel legal issues loom thus far about which the court could benefit from the assistance of appointed counsel. Although Williams qualifies for indigent status, the interests of justice do not warrant appointment of counsel at this time.
CONCLUSION AND ORDER
Although Williams qualifies to proceed in forma pauperis, he has not demonstrated that appointing counsel is warranted. Accordingly, it is hereby
ORDERED that the plaintiff's motion  to appoint counsel be, and hereby is, DENIED. It is further
ORDERED that the plaintiff's motion  for leave to proceed in forma pauperis be, and hereby is, GRANTED.