Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02435-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2435-PSF-PAC (Consolidated with 04-cv-0639-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs, Defendant.

Civil Action No. 04-cv-0639-PSF-PAC (Consolidated with 03-cv-2435-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, et al., Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff Lillian F. Sandle, in her "Motion and Affidavit for Leave to Request for Court Appointed Attorney, Pursuant to 28 U.S.C. § 1915," filed June 15, 2005, fails to

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meet her burden of showing that she should be appointed counsel in this case. Her motion should therefore be denied.1 DISCUSSION In Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir.1992), the Tenth Circuit set out four factors to be considered by the district court in deciding whether, as a matter of discretion, counsel should be appointed. Those factors include (1) the movant's financial inability to pay for counsel; (2) her diligence in attempting to secure counsel; (3) the merits of her case; and (4) "in close cases," her capacity to present the case without counsel. "[I]t is the plaintiff who must provide the court with this information...." Vera v. Utah Dept. of Human Services, Youth Corrections Div., 203 F.3d 836 (Table), 2000 W L 130717, **2 (10th Cir. Feb. 4, 2000). Ms. Sandle does not address all four factors in her motion. As for the first factor, she appears to have demonstrated a financial inability to pay for counsel. She attaches as an exhibit to her motion a document entitled "Motion and Affidavit for Leave to Proceed

Pursuant to D.C.COLO.LCivR 7.1(C), defendants' response was due on Tuesday, July 5, 2005. Defendant were prepared to file their response brief on July 5, 2005, but were not able to as "the Clerk's Office has deemed there to be a technical failure and the ECF site is unable to accept filings." See Administrative Order 2005-07, "Order Extending All Civil Filing Case Filing Deadlines Due to Electronic Filing Technical Failure." Pursuant to Administrative Order 2005-07, "all filing deadlines for July 5, 2005, in all civil . . . cases are . . . extended one (1) day to July 6, 2005." Id. Consequently, defendants are filing their response brief in this case on July 6, 2005. -2-

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Pursuant to 28 U.S.C. § 1915," (hereafter "Section 1915 motion") which indicates that she has not been employed since 1991, that she does not receive public assistance, and that she has monthly obligations of $891.22. As for the second factor, Ms. Sandle must demonstrate that she has made a "reasonably diligent effort under the circumstances to obtain counsel." Castner, 979 F.2d at 1422 (quoting Bradshaw v. Zoological Society, 662 F.2d 1301, 1319 (9th Cir. 1981)). "Factors to be considered include the number of attorneys contacted, the availability of counsel in the geographical area who represent employment discrimination claimants, and the plaintiff's possible skill or lack of skill at obtaining such help." Castner, 979 F.2d at 1422. M s. Sandle has not shown that she has made a diligent effort to attempt to secure counsel. She indicates that she has contacted five attorneys, but one of them is located in Olympia, Washington; one is the Denver University Law School; one is the Colorado Bar Association; and one is the EEOC District Office in Denver, Colorado. See Section 1915 motion. She only lists one actual attorney in the Denver area whom she has contacted, id., and she does not indicate the responses she received from any of the attorneys or organizations contacted. Id. Assuming arguendo that Ms. Sandle lacks skill at obtaining representation, she has nevertheless not met her burden. She has not shown that she has contacted any more than one actual attorney in the Denver metropolitan area, and she has not shown a dearth of

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counsel available in the Denver metropolitan area who represent employment discrimination claimants.2 Because Ms. Sandle has not presented evidence to suggest that she has diligently attempted to secure counsel, her motion should be denied by this Court without even considering the remaining two factors in the Castner analysis. Even if the Court reaches the third or the fourth factors, Ms. Sandle's motion should be denied. With respect to the third factor, the merits of her case, defendants demonstrated in their motions for summary judgment, filed on March 13, 2005, that the motions should be granted for a variety of reasons. Defendants showed in their motions that this Court lacks jurisdiction over a multitude of Ms. Sandle's claims for several reasons, including but not limited to the following: (1) Ms. Sandle failed to exhaust her administrative remedies as to a multitude of her claims; (2) she failed to allege any claim of constitutional dimension; (3) she did not suffer an adverse employment action as to

Defendants have conducted a internet search on this issue by searching the "yellow pages" online at yellow.com. A search of yellow.com identifies 748 attorneys in the city of Denver under the heading "employment and labor law." See http://ypng.infospace.com/_1_2GDJTLP02VMWM87__info.yellow/ypv3/cat.htm?&kcfg =ypus&ypinsp=0&fromform=qsearch&qh=attorneys&wqhqn=1&qhqn=attorneys&qc=D enver&qs=CO&qk=200&xmlurl=http%3A%2F%2Fapi.superpages.com%2Fxml%2Fsear ch%3FSRC%3DInfospace%26search%3DFind%2BIt%26PG%3DL%26CS%3DL%26T %3DDenver%26PB% 3D%26S%3DCO%26Z%3D%26A%3D%26X%3D%26P%3D%26 CID%3D%26K%3D%26C%3Dattorneys%26N%3D%26PI%3D%26NA%3D%26STYP E%3D%26R% 3DN&top=internal&28901. -4-

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most of her claims; and (4) defendants had legitimate non-retaliatory and nondiscriminatory reasons for all of their actions. Notably, in her opposition to defendants' motions, Ms. Sandle makes only conclusory allegations. For example, in her response to defendants' summary judgment motion in Civil Action No. 03-cv-2435-PSF-PAC, she describes only her beliefs as to what she considers to be the facts of this case, but fails to substantiate her beliefs with any evidence and does not demonstrate the existence of a genuine issue as to any material fact. See Docket No.88 (Response to Defendant's Motion for Summary Judgment); see also Docket No. 103 (Defendant's Reply in Support of Motion for Summary Judgment in Civil Action No. 03-cv-2435-PSF-PAC) at 3-6. With respect to Civil Action No. 04-cv0639-PSF-PAC, the only claim remaining in that case is Ms. Sandle's apparent claim that her constitutional rights were violated when she was not selected for a position in Nursing Education. See Docket No. 79 (March 30, 2005 Order) at 3-8. As defendants pointed out in their reply brief in Civil Action No. 04-cv-0639-PSF-PAC, this Court lacks jurisdiction to consider the claim that her constitutional rights were violated when she was not selected for the position. See Docket No. 105 (Reply in Support of Motion for Summary Judgment in Civil Action No. 04-cv-00639-PSF-PAC) at 5-8. In short, nothing in defendants' motions for summary judgment, or in Ms. Sandle's responses to those motions, suggests that any of Ms. Sandle's claims has any merit.

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Finally, with respect to the fourth factor, which "in close cases" requires the district court to assess a pro se party's capacity to present his case without counsel, nothing in Ms. Sandle's filings with this Court to date suggests that she is incapable of articulating her claims and views in this matter. Therefore the fourth factor in the Castner analysis also counsels against granting Ms. Sandle's motion. CONCLUSION Ms. Sandle has failed to meet her burden of showing that she merits appointment of counsel under the factors set forth in Castner v. Colorado Springs Cablevision. Therefore, for the reasons set forth above, and any which may be articulated at a hearing on this matter, plaintiff Lillian F. Sandle's "Motion and Affidavit for Leave to Request for Court Appointed Attorney, Pursuant to 28 U.S.C. § 1915" should be denied. DATED: July 6, 2005. WILLIAM J. LEONE Acting United States Attorney

s/ Michael C. Johnson Michael C. Johnson Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected] Counsel for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of July, 2005, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system. I also hereby certify that on this 6th day of July, 2005, I placed the foregoing document in the U.S. Mail, postage paid, to the following non CM/ECF participants at the following addresses:

Ms. Lillian Sandle 2978 Cherry Street Denver, CO 80207

Thomas Kennedy, Esq. U.S. Department of Veterans Affairs Regional Counsel's Office 155 Van Gordon Street Suite 551 Lakewood, Colorado 80228

s/ Michael C. Johnson Michael C. Johnson Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]

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