                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                  In the                                   June 7, 2006
                         United States Court of Appeals                              Charles R. Fulbruge III
                                       for the Fifth Circuit                                 Clerk
                                            _______________

                                              m 05-41274
                                            _______________



                                             OLGA OVIEDO,

                                                               Plaintiff-Appellant,

                                                 VERSUS

                               LOWE’S HOME IMPROVEMENT, INC.,

                                                               Defendant-Appellee.


                                     _________________________

                             Appeal from the United States District Court
                                  for the Eastern District of Texas
                                          m 4:04-CV-224
                               ______________________________



Before SMITH, CLEMENT, and PRADO,                      trict court’s refusal to appoint counsel for her.
  Circuit Judges.                                      We affirm.

PER CURIAM:*                                                                   I.
                                                           Oviedo, proceeding pro se, alleged national
   Olga Oviedo appeals the dismissal of her            origin discrimination under title VII of the Civ-
suit against her former employer, Lowe’s               il Rights Act of 1964 and a variety of other
Home Improvement (“Lowe’s”), and the dis-              claims. From the start of the litigation, she
                                                       made repeated requests that the district court
                                                       appoint counsel, which the court denied. The
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    court set a deadline of May 31, 2005, for com-
termined that this opinion should not be published     pleting discovery.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
   Lowe’s served its first discovery request on           present her case without counsel. The Caston
January 25, 2005. A response was due Febru-               court did not consider this factor, and we have
ary 28, 2005, but Oviedo never responded.                 never explicitly included it as a formal element
Lowe’s made numerous attempts to get a re-                in our analysis.1 The three Caston factors,
sponse and informed Oviedo of the serious                 however, are not the only relevant inquiries.
nature of her failure to respond and of the po-           They are “simply ingredients in the total mix of
tential consequences. Oviedo also refused to              relevant information which should guide the
provide dates on which she could be deposed.              discretion of the district court.” Caston, 556
                                                          F.2d at 1310.
   On May 9, 2005, Lowe’s moved for dis-
missal for failure to prosecute. Observing that              Although the district court cited Caston
Oviedo had never responded to the motion to               incorrectly, it did not err when it considered
dismiss or exhibited any intention of partici-            Oviedo’s obvious ability to represent herself as
pating in discovery, the court dismissed with             a factor weighing against the appointment of
prejudice on July 12, 2005.                               counsel. See Buesgens v. Snow, 2006 WL
                                                          535733, at *2 (5th Cir. Mar. 6, 2006). Ovi-
                       II.                                edo’s ability to represent herself, coupled with
    We review for abuse of discretion the re-             the weakness of her case, provided sufficient
fusal to appoint counsel for a title VII plaintiff.       grounds for the decision. The district court
Jackson v. Dallas Police Dep’t, 811 F.2d 260,             acted well within its discretion when it denied
261 (5th Cir. 1986). The district court should            counsel.
consider “(1) the merits of the plaintiff's claims
of discrimination; (2) the efforts taken by the                                 III.
plaintiff to obtain counsel; and (3) the plain-              We review the dismissal for abuse of dis-
tiff's financial ability to retain counsel.”              cretion. Hulsey v. Texas, 929 F.2d 168, 170
Gonzalez v. Carlin, 907 F.2d 573, 580 (5th                (5th Cir. 1991). Dismissal with prejudice is
Cir. 1990) (citing Caston v. Sears, Roebuck &             “appropriate only if the refusal to comply re-
Co., 556 F.2d 1305, 1309 (5th Cir. 1977)).                sults from willfulness or bad faith and is ac-
No one factor is conclusive. Id.                          companied by a clear record of delay or contu-
                                                          macious conduct.” Coane v. Ferrara Pan
    The district court concluded that Oviedo              Candy Co., 898 F.2d 1030, 1032 (5th Cir.
had made adequate efforts to obtain counsel               1990).
and could not afford counsel but that the mer-
its of her claim were suspect. The court noted
the likelihood that Oviedo’s claim is procedur-              1
                                                               The plaintiff’s ability to represent herself is a
ally barred because she failed to file a claim            consideration for 42 U.S.C. § 1983 appointment of
within 300 days of the last instance of dis-              counsel cases in this circuit. See Ulmer v. Chan-
crimination. We agree with the court’s assess-            cellor, 691 F.2d 209, 213 (5th Cir. 1982). Other
ment of the Caston factors as expressed in its            circuits consider the plaintiff's ability to present his
order dated September 27, 2004.                           case in title VII suits. See, e.g., Ferrelli v. River
                                                          Manor Health Care Ctr., 323 F.3d 196, 203 (2d
                                                          Cir. 2003); Castner v. Colo. Springs Cablevision,
   The district court incorrectly attributed a
                                                          979 F.2d 1417, 1421 (10th Cir.1992); Hunter v.
fourth factor to the Caston holding: whether              Dep’t of Air Force Agency, 846 F.2d 1314, 1317
the plaintiff has the capacity adequately to              (11th Cir. 1988).

                                                      2
   The uncontroverted facts described in the
magistrate judge’s report and recommendation
dated June 14, 2005, constitute a sufficient
basis for dismissal, and Oviedo’s arguments on
appeal cast no doubt on the propriety of the
district court’s disposition of this case. De-
spite being given many opportunities to re-
spond, Oviedo was entirely uncooperative with
the discovery process for a period of about
five months. At the time the court dismissed
the case, more than a month after discovery
was supposed to have closed, Oviedo had still
made no effort to proceed other than to reas-
sert her motion for appointed counsel.

    Unfortunately for Oviedo, the acuity with
which she had theretofore prosecuted her case
made it all the more obvious to the district
court that her refusal to participate in discov-
ery was a knowing and willful delay. For a
time, she pursued her case with, as the district
court put it, more skill than many lawyers.
Then, inexplicably, she disappeared. Although
pro se plaintiffs are entitled to some leniency,
“the right of self-representation does not
exempt a party from compliance with relevant
rules of procedural and substantive law.” Birl
v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)
(citing Faretta v. California, 422 U.S. 806,
834 n.46 (1975)). In light of Oviedo’s failure
to prosecute her case over an extended period
of time despite having the obvious capacity to
do so, the dismissal was not an abuse of dis-
cretion.

   AFFIRMED.




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