Newsome v. Entergy Services Inc ( 2000 )

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.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-3109-G
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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that this opinion should not be published and is not precedent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
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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
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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.