United States District Court, E.D. Texas, Sherman Division
ORDER AND OPINION
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE
before the Court is pro se Plaintiff Shelley
Soniat's Motion for an Attorney (Dkt. 5). For the
following reasons, the Court finds Plaintiff's motion
(Dkt. 5) is DENIED.
previously filed a lawsuit in three separate actions in this
district in 2014. The case was referred to Magistrate Judge
Don D. Bush from Judge Richard Schell (collectively, the
“Judicial Defendants”). 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 Fed.Appx. 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
20, 2016, Plaintiff filed another lawsuit in this district
against the Judicial Defendants and the Department of Housing
and Urban Development (“HUD”). She asserted 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. Specifically, Plaintiff claimed
after the Judicial Defendants refused to issue summons in her
previous case, she sent a personal letter to HUD, and it
refused to answer her lawsuit, resulting in a discriminatory
effect. On December 16, 2016, the undersigned entered two
Report and Recommendations recommending Plaintiff's
claims be dismissed against all of the defendants in that
suit, in which the district court adopted on January 6, 2017.
See Soniat v. Dep't of Hous. & Urban Dev.,
2017 WL 68562 (E.D. Tex. Jan. 6, 2017); Soniat v.
Dep't of Hous. & Urban Dev., 2017 WL 73073 (E.D.
Tex. Jan. 6, 2017). That case is currently pending on appeal.
March 6, 2017, Plaintiff filed another action against Texas
Real Estate Commission, Texas Association of Realtors, and
National Association of Realtors. Plaintiff essentially made
the same complaints as she did in her first two lawsuits in
this district. On April 21, 2017, the undersigned
recommended Plaintiff's claims against the Texas
Association and Realtors and National Association of Realtors
be dismissed, in which the district court adopted on May 12,
2017. See Soniat v. Tex. Real Estate Comm'n,
2017 WL 2021323 (E.D. Tex. May 12, 2017). On May 15, 2017,
the undersigned recommended Plaintiff's case against the
Texas Real Estate Commission be dismissed, in which the
district court adopted on June 5, 2017. See Soniat v.
Tex. Real Estate Comm'n, 2017 WL 2426499 (E.D. Tex.
June 5, 2017). That case is currently pending on appeal.
August 17, 2017, Plaintiff filed the instant action against
Carolyn A. Mitchell, alleging essentially the same facts as
those asserted in her previous three lawsuits (Dkt. 1). On
August 29, 2017, Plaintiff filed a motion for appointment of
counsel (Dkt. 5).
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).
little case law exists on the appointment of an attorney by a
court 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
Soniat v. Tex. Real Estate Comm'n, 2017 WL 1337630,
at *3; 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
briefly states that she is unable to afford counsel.
See Dkt. 1. Plaintiff submitted a financial
affidavit with her motion to proceed in forma
pauperis, and the Court finds that she is financially
incapable to pay for counsel. See Dkt. 3. Plaintiff
further asserts that she was unable to secure counsel willing
to take her case pro bono. See Dkt. 5 at 5.
Thus, Plaintiff has met the first and second elements.
However, Plaintiff cannot show the third element.
warrant appointment of counsel, the plaintiff must
affirmatively show she asserts meritorious claims. See
Soniat v. Tex. Real Estate Comm'n, 2017 WL 1337630,
at *2 (citing Jackson, 2014 WL 494789, at *3). In
the instant lawsuit, Plaintiff requests the Court to decide
the following questions:
(1) Did the Defendant, Attorney Mitchell, violate the laws of
the Fair Housing Act by encouraging her client to fight a
fair housing lawsuit instead of observing the laws of The