Newsome v. Entergy Services Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 14, 2000
• Docket: 00-30521
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30521 Summary Calendar

VOGEL DENISE NEWSOME,

Plaintiff-Appellant,

versus

ENTERGY SERVICES INCORPORATED,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-3109-G - - - - - - - - - - July 12, 2000

Before JOLLY, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Vogel Denise Newsome, proceeding pro se and in forma

pauperis (IFP), filed a complaint alleging, inter alia,

violations under Title VII of the Civil Rights Act. She contends

that she was subjected to race and gender-based discrimination

while working in a temporary assignment for Entergy Services,

Incorporated. She filed a motion for appointment of trial

counsel, which the district court denied. Newsome wishes to

appeal the district court’s denial of her motion for appointment

of trial counsel and requests from this court appointment of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-30521 -2-

appellate counsel to pursue the issue. See Caston v. Sears,

Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir. 1977)(holding that

this court has jurisdiction to entertain an appeal from the

denial of a motion for appointment of counsel in the context of a

Title VII civil rights’ complaint, even though the case has not

yet been resolved on the merits).

When the district court considered Newsome’s motion for

appointment of counsel, it made findings relating to the

“exceptional circumstances” test outlined in Ulmer v. Chancellor,

691 F.2d 209, 213 (5th Cir. 1982), and applicable to IFP cases.

See 28 U.S.C. § 1915(d). The district court, however, did not

make findings under the appropriate standard for Title VII cases.

When a complainant requests appointment of counsel under Title

VII, the court must consider: (1) the merits of plaintiff’s

claims of discrimination; (2) the efforts taken to obtain

counsel; and (3) the plaintiff’s financial ability to retain

counsel. See Caston, 556 F.2d at 1308; Gonzalez v. Carlin, 907

F.2d 573, 580 (5th Cir. 1990). The IFP standard and the Title

VII standard for appointment of counsel are not interchangeable.

See Gonzalez, 907 F.2d at 580.

Although it cited to Gonzalez and the standard for

appointment of counsel in Title VII cases, the district court

relied solely on the Ulmer factors when it denied Newsome’s

request for appointment of trial counsel. Because it did not

adequately develop the proper standard, the district court’s

order denying appointment of trial counsel is VACATED and the

case REMANDED to the district court for further consideration No. 00-30521 -3-

under the appropriate standard. Newsome’s motion for appointment

of appellate counsel is DENIED. Cf. Whitehead v. Johnson, 157

F.3d 384, 388 (5th Cir. 1998).

MOTION DENIED; VACATED and REMANDED.