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Soniat v. Texas Real Estate Commission

United States District Court, E.D. Texas, Sherman Division

April 12, 2017

SHELLEY SONIAT, Plaintiff,
v.
TEXAS REAL ESTATE COMMISSION, ET AL., Defendants.

          MAZZANT JUDGE

          ORDER AND OPINION

          KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is pro se Plaintiff Shelley Soniat's Motion for an Attorney (Dkt. 6). For the following reasons, the Court finds Plaintiff's motion (Dkt. 6) is DENIED.

         I. BACKGROUND

         Plaintiff previously filed a lawsuit in three (3) separate actions in this district in 2014.[1] The first case was referred to Magistrate Judge Don D. Bush from Judge Richard Schell (collectively, the “Judicial Defendants”) for pretrial management. Judge Bush denied Plaintiff's request for the issuance of summons and recommended Plaintiff's case be dismissed with prejudice for failure to state a claim. See Soniat v. Jackson, 2014 WL 6968871, at *2, 6 (E.D. Tex. Dec. 9, 2014). Judge Schell subsequently adopted Judge Bush's report and dismissed the consolidated action. See Soniat v. Jackson, 2015 WL 1503650 (E.D. Tex. Mar. 31, 2015). Plaintiff appealed, but the Fifth Circuit affirmed. See Soniat v. Jackson, 628 F. App'x 292 (5th Cir. 2016). Plaintiff filed a petition for a writ of certiorari in the Supreme Court, but it was denied on May 16, 2016. See Soniat v. Jackson, 136 S.Ct. 2016, 2016 WL 900300 (May 16, 2016).

         On May 20, 2016, Plaintiff filed another lawsuit in this district against the Judicial Defendants and the Department of Housing and Urban Development (“HUD”), [2] asserting that the Judicial Defendants discriminated against her by not allowing her to exercise and enjoy her rights under the Fair Housing Act. Further, she asserted HUD's policy of deferring to the Judicial Defendants' discretion and refusing to respond to her previous lawsuit has a discriminatory effect on women and minorities.

         On December 16, 2016, the undersigned entered two (2) Report and Recommendations, recommending Plaintiff's claims be dismissed against all defendants, in which the district court adopted on January 6, 2017. See Soniat v. Dep't of Hous. and Urban Dev., 2017 WL 68562 (E.D. Tex. Jan. 6, 2017); Soniat v. Dep't of Hous. and Urban Dev., 2017 WL 73073 (E.D. Tex. Jan. 6, 2017). That case is currently pending on appeal.

         On March 6, 2017, Plaintiff filed the instant action against the Texas Real Estate Commission, Texas Association of Realtors, and National Association of Realtors (“Defendants”) (Dkt. 1), wherein she asserted the same complaints essentially stated in her first two (2) lawsuits. On April 3, 2017, Plaintiff filed the Motion for an Attorney, requesting the Court to appoint counsel under 42 U.S.C. § 3613. See Dkt. 6 at 1.

         II. LEGAL STANDARD

         In general, there is no constitutional right to appointment of counsel in civil cases. See Santana v. Chandler, 961 F.2d 514, 516 (5th Cir. 1992). Parties to an action for discrimination in housing may seek the appointment of counsel under 42 U.S.C. § 3613(b)(1). However, appointment of counsel is left to the discretion of the court. See 42 U.S.C. § 3613(b); Roberts v. McKinney Hous. Auth., 2007 WL 1795691, at *1 (E.D. Tex. June 20, 2007).

         Although little case law exists on the appointment of an attorney under 42 U.S.C. § 3613(b), courts have found case law on the appointment of an attorney under 42 U.S.C. § 2000e-5(f)(1) to be instructive and persuasive. See Jackson v. Park Place Condos. Ass'n, Inc., 2014 WL 494789, at *2 (D. Kan. Feb. 6, 2014); Zhu v. Countrywide Realty Co., 148 F.Supp.2d 1154, 1157 (D. Kan. 2001). Those courts follow factors identified by the Tenth Circuit when evaluating a motion for appointment of counsel. See Id. (citing Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992)). Before counsel may be appointed under 42 U.S.C. § 2000e-5, the plaintiff requesting the appointment 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. See id.

         III. ANALYSIS

         As to the first and second elements, Plaintiff has briefly stated that she is unable to afford counsel. See Dkt. 1. Although she has not provided financial information, the Court will assume this is true for purposes of this analysis. Plaintiff further showed that she contacted at least three (3) attorneys who refused to represent her. See Dkt. 1 at 11. However, Plaintiff cannot show the third element.

         To warrant appointment of counsel, Plaintiff must affirmatively show she asserted meritorious claims. See Jackson, 2014 WL 494789, at *3. In the instant lawsuit, Plaintiff ...


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