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Kucuk v. Central Washington University

United States District Court, W.D. Washington, Seattle

January 23, 2018

SELIM UMIT KUCUK, Plaintiff,
v.
CENTRAL WASHINGTON UNIVERSITY, Defendant.

          ORDER DENYING MOTION TO APPOINT COUNSEL

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court is Plaintiff Selim Umit Kucuk's motion to appoint counsel. (MTAC (Dkt. # 14).) Defendant Central Washington University (“CWU”) opposes the motion. (Resp. (Dkt. # 16).) The court has considered the motion and CWU's response, [1] the relevant portions of the record, and the applicable law. Being fully advised, [2] the court denies the motion.

         II. BACKGROUND

         On August 21, 2017, Mr. Kucuk filed this lawsuit alleging employment discrimination and other claims against CWU. (See generally Mot. for IFP (Dkt. # 1); Compl. (Dkt. # 3).) On August 22, 2017, the court granted Mr. Kucuk's motion for in forma pauperis status. (IFP Order (Dkt. # 2).)

         In his motion seeking court-appointed counsel, Mr. Kucuk states that he has contacted “over a dozen of [sic] lawyers” during the past three to four months. (MTAC at 2.) He states that “although the majority of attorneys saw a [sic] merit in [his] case, ” they declined to accept his case because they do not take contingency fee cases. (Id.) He acknowledges that the Equal Opportunity Employment Commission (“EEOC”) did not find “reasonable cause” to believe his allegations had merit. (Id.) He does not provide his own statement concerning why his claims have merit. (See generally id.)

         III. ANALYSIS

         A plaintiff has no constitutional right to appointed counsel in an employment discrimination suit. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). Nevertheless, Title VII of the Civil Rights Act of 1964 provides in pertinent part that:

Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security.

42 U.S.C. § 2000e-5(f)(1)(B). Although the court possesses the authority to appoint counsel, the court is not obligated to appoint counsel in every employment discrimination case. Johnson v. U.S. Dep't of Treasury, 939 F.2d 820, 824 (9th Cir. 1991) (citing Ivey, 673 F.2d at 269). Rather, the determination is left to the sound discretion of the district court. Id. The three factors relevant to the court's determination of whether to appoint counsel, include: (1) the plaintiff's financial resources; (2) the efforts made by the plaintiff to secure counsel on his or her own; and (3) the merits of the plaintiff's claim. Johnson v. U.S. Treasury Dep't, 27 F.3d 415, 417 (9th Cir. 1994).

         The first factor-the plaintiff's financial resources-favors the appointment of counsel. Mr. Kucuk has already been granted in forma pauperis status (see IFP Order), and so he is unlikely to have the financial resources necessary to obtain private counsel.

         The court concludes that the second factor-the plaintiff's efforts to secure counsel-is either neutral or does not favor the appointment of counsel. In Bradshaw v. Zoological Soc'y of San Diego, the Ninth Circuit found that a plaintiff's efforts to contact more than ten attorneys demonstrated “the requisite degree of diligence . . . to secure counsel.” 662 F.2d 1301, 1319 (9th Cir. 1981). However, in Bradshaw, the plaintiff's motion was supported by “affidavits . . . detailing her unsuccessful efforts to obtain an attorney.” Id. at 1303. Unlike the plaintiff in Bradshaw, Mr. Kucuk does little to explain or detail his efforts. In his motion, Mr. Kucuk states that he has “contacted over a dozen of [sic] lawyers” within the “last 3-4 months, ” but that all of the attorneys declined to take his case because they did not accept cases on a contingency fee basis. (MTAC at 2.) He does not detail any efforts to locate an attorney who specifically handles employment or contingency fee cases, and he does not indicate whether he checked with any associations or entities that could assist him in locating an attorney to represent him on a pro bono or contingency fee basis. See Shepherd-Sampson v. Paratransit Servs., No. C13-5888 BHS, 2014 WL 3728768, at *2 (W.D. Wash. July 25, 2014) (denying motion to appoint counsel in part because the plaintiff did “little to explain her efforts to secure her own counsel”). Thus, although with sufficient explanation Mr. Kucuk's efforts to contact over a dozen lawyers might satisfy “the requisite degree of diligence” to secure counsel, Bradshaw, 662 F.2d at 1319, it does not here. The court acknowledges that Mr. Kucuk need not “‘exhaust the legal directory' as a prerequisite to the appointment of counsel.” Id. Nevertheless, for the court to conclude that Mr. Kucuk “has done all that may reasonably be expected, ” more detail than what is provided concerning his search is necessary.

         Finally, the court concludes that the last factor-the merit of plaintiff's claim- also does not favor the appointment of counsel. Mr. Kucuk acknowledges that the EEOC did not find “reasonable cause” to believe his allegations have merit. (MTAC at 2.) The Ninth Circuit has stated that “[i]f the agency has found ‘reasonable cause, ' . . . the claim should ordinarily be deemed meritorious for purposes of appointment of counsel, and the court need make no further inquiry with respect to that subject.” Bradshaw, 662 F.2d at 1309. However, “an EEOC determination that no reasonable cause supports the plaintiff's claim should be approached somewhat differently.” Id. at 1309 n.20.

         Although it is still relevant, the refusal to appoint counsel solely because the EEOC finds no reasonable cause to believe that a claim exists would be error. See id.; see also Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308-09 (5th Cir. 1977) (concluding that EEOC finding of no reasonable cause is highly probative but not determinative); Harris v. Walgreen's Distrib. Ctr., 456 F.2d 588, 590 (6th Cir.1972) (concluding that it is error for the district court to rely solely upon an EEOC finding of no probable cause). Although the court takes note of the EEOC's negative determination, the court does not rely solely on that determination in concluding that the third factor does not favor the appointment of counsel. Here, in ...


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