United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Willow Anita Kreucher's Motion for
Appointment of Counsel, filed May 24, 2017. (Dkt. 8). For the
following reasons, the Court finds that the motion should be
considering a motion for the appointment of counsel, a court
examines: (1) the plaintiff's efforts to obtain counsel;
(2) the plaintiff's financial ability to retain counsel;
and (3) the merits of the plaintiff's claims.
Gonzalez v. Carlin, 907 F.2d 573, 580 (5th Cir.
1990). Courts may also consider the plaintiff's ability,
under the circumstances of the case, to present his or her
case without the assistance of an attorney. Oviedo v.
Lowe's Home Improvement, Inc., 184 F. App'x 411,
412 (5th Cir. 2006). There is no absolute right to the
appointment of counsel. Thomas v. Norris, No.
1:07-CV-573, 2008 WL 859190, at *2 (E.D. Tex. Mar. 28, 2008).
the first factor, Plaintiff's motion indicates that she
has contacted around four law firms and three legal aid
organizations about the possibility of securing
representation. According to Plaintiff, she was either unable
to afford their services or the organization lacked resources
to handle her case. Because Plaintiff appears to have
diligently sought representation, this factor weighs slightly
in favor of appointing counsel.
now to the second factor, Plaintiff appears to lack the
resources to pay for an attorney's services. She was
previously granted leave to proceed in forma
pauperis in this matter. (See Order, Dkt. 3).
Although she has secured employment since that time, the
record suggests that her current income still falls below her
monthly expenses. On the other hand, Plaintiff holds a
non-negligible amount in stock as well as a small amount in
savings. Since these amounts are likely necessary to cover
the gap between Plaintiff's income and expenses, they do
not advise against the appointment of counsel.
the Court must evaluate the merits of Plaintiff's claims.
It appears that Plaintiff asserts two primary claims:
retaliation in violation of the Americans with Disabilities
Act (“ADA”), 28 U.S.C. §§ 12101 et
seq., and wrongful termination for her whistleblowing
activities. Each of these, however, appears unlikely to
succeed. State agencies, such as the Defendant here, are
generally immune from liability under the ADA. See Dottin
v. Tex. Dep't of Criminal Justice, 627 F. App'x
397 (5th Cir. 2015) (per curiam) (affirming dismissal of ADA
retaliation claim on grounds of state sovereign immunity).
Even in the absence of sovereign immunity, Plaintiff's
allegations leave vague certain necessary elements of a
retaliation claim, including what conduct constituted
protected activity and whether there was a causal connection
between that activity and the alleged adverse actions.
See Swanson v. Aegis Commc'ns Grp., Inc., No.
3-09-CV-31-D, 2010 WL 1779666, at *3 (N.D. Tex. Mar. 22,
2010) (listing necessary elements of ADA retaliation claim).
Court likewise doubts that Plaintiff may maintain a claim
under the Texas Whistleblower Act, Tex. Gov't Code §
554.004. First, the Act only protects individuals
who report violations of a state or federal statute, a local
ordinance, or a rule promulgated under a statute or
ordinance, and it is not clear from Plaintiffs allegations
that the safety issues she reported fall within any of these
categories. See Id. §§ 554.001, 554.002.
Second, it is not clear from Plaintiffs pleadings that she
has complied with the prerequisites to suit under the
statute, or that she has filed her claim within the
applicable limitations period. See Id. §§
554.005, 554.006. Finally, and most fundamentally, the Texas
Whistleblower Act's waiver of sovereign immunity does not
extend to suits brought in the federal courts. See
Id. § 554.0035; Martinez v. Tex. Dep't of
Criminal Justice, 300 F.3d 567, 575-76 (5th Cir. 2002)
("[W]e hold that, under this Act, Texas has not waived
its Eleventh Amendment immunity in federal court."). In
other words, Plaintiff may pursue her whistleblower claims
against TDCJ only in state court.
light of the weakness of Plaintiff s claims and the lack of
jurisdiction to adjudicate them in the absence of
Defendant's waiver of sovereign immunity, the Court's
evaluation of the merits of Plaintiffs claims weighs heavily
against the appointment of counsel. Considering this along
with the other relevant factors, the Court will decline to
appoint counsel for Plaintiff in this matter.
Plaintiffs Motion for Appointment of Counsel is hereby
DENIED. (Dkt. 8).
 Plaintiff does not specifically
identify this statute as the basis for her claim. However,
the Court assumes from her reference to
“whistleblowing” that this is the relevant
statute. Though a broader federal statute exists to protect
whistleblowers, its protection is limited to federal
employees. See 5 U.S.C. §§ 1221(a);
2015(a); 2302(b)(8). Plaintiff was an ...