United States District Court, S.D. Texas, Galveston Division
NORBERTO ATENCIO Plaintiff.
HENRY TORRES; INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 20 Defendants.
M. EDISON, UNITED STATES MAGISTRATE JUDGE
Norberto Atencio ("Atencio") filed this lawsuit
against Henry Torres and International Longshoremen's
Association, Local 20 (collectively, "Defendants"),
claiming that Defendants discriminated against him based on
his race and national origin in violation of Title VII of the
Civil Rights Act of 1964. Currently before the Court is
Atencio's request that the Court appoint him a lawyer.
See Dkts. 8 and 10. In a nutshell, Atencio contends
that he does not have the financial resources to hire
VII provides for the appointment of an attorney for a
plaintiff upon request "in such circumstances as the
court may deem just." 42 U.S.C. § 2000e-5(f)(1).
This statutory provision provides Title VII litigants the
right to request an attorney, but there is no automatic right
to the appointment of counsel. See Caston v. Sears,
Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir. 1977).
As the Fifth Circuit has made abundantly clear: "the
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). See also Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982) (as a
general rale, an attorney should be appointed in a civil case
only if "exceptional circumstances" exist).
decision whether to appoint counsel in a Title VII case rests
within the sound discretion of the trial court. See
Caston, 556 F.2d at 1308. As plaintiff, Atencio bears
the burden of demonstrating that appointment of counsel is
appropriate. See Paskauskiene v. Alcor Petrolab,
L.L.P., 527 Fed.Appx. 329, 333 (5th Cir. 2013). District
courts analyzing the merits of a Title VII plaintiffs request
for counsel should consider: (1) the plaintiffs financial
ability to retain counsel; (2) the efforts taken by the
plaintiff to obtain counsel; and (3) the merits of the
plaintiffs claim of discrimination. See Gonzalez v.
Carlin, 907 F.2d 573, 579 (5th Cir. 1990). No. single
factor is conclusive.
first factor a court must consider in deciding whether to
appoint counsel is the plaintiffs financial ability to retain
counsel. A plaintiff is required to show that he has
"insufficient assets and income to enable [him] to
afford an attorney to investigate and file [his] claim."
Lee v. U.S. Postal Serv., 882 F.Supp. 589, 593 (E.D.
Tex. 1995). This [ standard is less than the
substantial showing of poverty required to proceed in
forma pauperis. In this case, Atencio easily meets this
standard, as he is of limited financial resources and has
sought and received in forma pauperis status.
second factor to be considered is what efforts Atencio has
taken to obtain counsel. "To be eligible for appointed
counsel, [Atencio] must make 'a reasonably diligent
effort under the circumstances to obtain counsel.'"
Id. at 594 (quoting Bradshaw v. Zoological
Soc'y, 662 F.2d 1301, 1319 (9th Cir. 1981)). Atencio
indicated at a status conference that he has spoken with a
Legal Aid Society about obtaining legal representation, but
was told his case was too complex. Atencio also said he
discussed the case with several lawyers, all of whom were
unwilling to accept representation unless Atencio put down a
substantial cash deposit. As such, Atencio also satisfies
this second requirement.
third and final factor a court must evaluate is the merits of
Atencio's claim of discrimination: Examining the
potential merits of a case "is most important,
considering the unfairness of imposing service upon a member
of the bar." Id. "This factor is also the
most difficult to apply." Id. In the present
case, it is hard, if not impossible, to assess the merits of
Atencio's case from reviewing the bare-boned Complaint.
The Complaint consists of a number of boxes, which Atencio
has checked to signify his claim that Defendants failed to
employ him, terminated his employment, and failed to promote
him because of his race and national origin. Atencio also
hand-wrote in the Complaint "other" allegations
against the Defendants: "Power to give me or not work[;]
influence on foreman to treat me discriminately[;] influence
on certifications labor." Dkt. 1 at 2. In a section of
the Complaint under the typed words "When and how the
defendant has discriminated against the plaintiff,"
Atencio wrote: "many times but it was the 27th November
that I recorded in video to have the necessary evidence to be
able to Protect myself." Id. Based on the
Complaint, the Court is reluctant to conclude that the
allegations are frivolous. But, at the same time, the paucity
of allegations certainly do not convince the Court that the
merits of the case are necessarily strong. At least from the
face of the Complaint, the Court cannot discern any concrete
proof of discrimination.
did pursue his administrative remedies before the Equal
Employment Opportunity Commission ("EEOC").
"As the administrative agency statutorily charged with
the responsibility of enforcing Title VII and presumably
equipped with at least a modest amount of expertise in the
area, the determination of the EEOC is highly
probative." Caston, 556 F.2d at 1309. In the
present case, the EEOC determined that it was "unable to
conclude that the information obtained establishes violations
of the statutes." Dkt. 1-4 at 1. Although this
conclusion certainly does not tank Atencio's case, i it
also does not provide any support for his claims.
Atencio desires to have able counsel represent him in this
lawsuit. This Court sympathizes with all pro se litigants in
Atencio's situation. Ideally, each litigant who appears
before this Court is represented by a zealous advocate who
champions his/her client's cause. The reality of the
situation, however, is that Congress has earmarked no funds
for such representation in Title VII cases and this Court
must remember that it cannot, in each and every case, order
an unwilling member of the bar to assume representation for
no compensation. Under the law governing the appointment of
counsel in Title VII proceedings, this Court must deny
Atencio's request to appoint counsel. Atencio has simply
not shown that this case presents "exceptional
circumstances" supporting the appointment of counsel.
See, e.g., Trumbo v. Performance Bicycle Shop, No.