                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
LINWOOD A. WILLIAMS, JR.,     )
                              )
          Plaintiff,          )
                              )
          v.                  )    Civil Action No. 08-1538 (RWR)
                              )
COURT SERVICES AND OFFENDER   )
SUPERVISION AGENCY FOR D.C., )
et al.,                       )
                              )
          Defendants.         )
______________________________)


                   MEMORANDUM OPINION AND ORDER

     Pro se plaintiff Linwood A. Williams, Jr. sues the Court

Services and Offender Supervision Agency for the District of

Columbia (“CSOSA”) and three agency officials alleging sex

discrimination and retaliation under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq.     Williams has moved

for appointment of counsel and to proceed in forma pauperis

(“IFP”).   Williams’ motion to proceed in forma pauperis will be

granted because Williams qualifies for IFP status.    Williams’

motion for appointment of counsel will be denied because Williams

has not demonstrated that appointing counsel is warranted.
                                 -2-

                             BACKGROUND1

     Williams served as a Supervisory Community Supervision

Officer at CSOSA and alleges that the agency retaliated against

him and ultimately terminated him in response to complaints that

Williams filed against the agency.     Williams appealed his

termination to the Merit Systems Protection Board (“MSPB”), and

an MSPB administrative judge affirmed the agency action and

denied Williams’ petition to reconsider.    A January 9, 2012

memorandum opinion and order granted Williams’ motion for

reconsideration of an earlier order that had dismissed the

complaint as untimely.   Discovery is now ongoing and Williams has

moved for IFP status and appointment of counsel.

                             DISCUSSION

I.   MOTION TO PROCEED IFP

     In general, courts determine whether to allow a litigant to

proceed in forma pauperis on a case-by-case basis.     Hurt v.

Social Security Admin., 544 F.3d 308, 309 (D.C. Cir. 2008) (per

curiam).   In forma pauperis status is appropriate if a litigant

demonstrates that paying for the costs of the suit would require

him to give up basic necessities of life.    Adkins v. E.I. DuPont

de Nemours & Co., 335 U.S. 331, 339 (1948).     A litigant need not

be “absolutely destitute” to qualify for IFP status.    Id.      In


     1
      The background of this case is set out fully in Williams v.
Court Servs. & Offender Supervision Agency for D.C., 772 F. Supp.
2d 186 (D.D.C. 2011), vacated on reconsideration, 840 F. Supp. 2d
192 (D.D.C. 2012).
                                -3-

this case, Williams has asserted that he “does not have the money

to pay for an attorney” (Pl.’s Mot. to Appoint Counsel (“Pl.’s

Mot.”) at 1) and “cannot afford to hire an attorney” (Pl.’s Reply

and Mot. for IFP status (“Pl.’s Reply”) at 3).   Williams

submitted a financial affidavit that shows that his monthly

income of around one thousand dollars is far outstripped by his

debts and monthly bills.   (Pl.’s Am. Mot. to Proceed IFP, Ex. 1,

Financial Affidavit.)   These financial circumstances are

sufficient to qualify Williams for IFP status.

II.   MOTION FOR APPOINTMENT OF COUNSEL

      IFP status does not automatically entitle a litigant to

appointed counsel.   “The law is well established that there is no

constitutional right to appointment of counsel in a civil case,

and no indigent civil litigant is guaranteed counsel.”   Brown v.

Children’s Nat’l Med. Ctr., 773 F. Supp. 2d 125, 140 (D.D.C.

2011) (internal quotation marks and citations omitted); see also

Dantzler v. EEOC, 810 F. Supp. 2d 312, 317 (D.D.C. 2011)

(recognizing that Title VII does not create a statutory right to

appointment of counsel).   Under 28 U.S.C. § 1915, courts have

discretion to appoint counsel to represent an indigent pro se

party.   28 U.S.C. § 1915; see also 42 U.S.C.

§ 2000e-5(f)(1) (providing that “[u]pon application by the

complainant and in such circumstances as the court may deem just,

the court may appoint an attorney”).   The following factors guide

the exercise of courts’ discretion:
                                 -4-

     (i) the nature and complexity of the action;

     (ii) the potential merit of the pro se party’s claims;

     (iii) the demonstrated inability of the pro se party to

     retain counsel by other means; and

     (iv) the degree to which the interests of justice will be

     served by appointment of counsel, including the benefit the

     Court may derive from the assistance of the appointed

     counsel.

Local Civil Rule 83.11(b)(3).

     A.     Nature and complexity of the action

     “[I]f a case will involve conflicting or complex testimony,

or difficult legal issues, representation by counsel may be

essential.”   Poindexter v. FBI, 737 F.2d 1173, 1189 (D.C. Cir.

1984).    However, while by their nature discrimination cases are

likely to involve some conflicting testimony, a discrimination

claim does not automatically require the appointment of counsel.

See Robinson-Reeder v. Am. Council on Educ., 626 F. Supp. 2d 11,

16 (D.D.C. 2009) (finding that appointment is not warranted in a

discrimination case where it “does not appear to be a case that

will involve conflicting or complex testimony, or difficult legal

issues [and] the factual issues appear to be uncomplicated and

the law in this area is clearly settled”) (internal quotation

marks omitted).

     In this case, Williams contends that he requires the

assistance of counsel because of the complexity of the gender
                                -5-

discrimination claims, the breadth of discovery he alleges that

he will be required to conduct, and the fact that he anticipates

opposition from the government in the form of motions for summary

judgment or refusal to disclose the documents he requests.

(Pl.’s Mot. at 1-2.)   The action appears fairly straightforward,

though, and there is no indication that Williams’ case is more

complex than many of the straightforward actions filed in this

court under Title VII, an area where the law is fairly settled.

Moreover, Williams has represented himself fairly ably in

proceedings to date.   Although the plaintiff’s pleadings are not

always perfectly clear, he has demonstrated an ability to

communicate with the court and to file appropriate motions.

Indeed, in this case, he prevailed on an opposed motion for

reconsideration of an order granting CSOSA’s motion to dismiss.

Williams also has prior experience litigating the issues in this

case from filing a number of whistleblower complaints against

CSOSA in 2002 and 2003.   (Compl. at 3.)   In addition, he appealed

to the MSPB the termination that gives rise to the instant

allegations of discrimination, suggesting that he now possesses a

familiarity with the evidence and legal issues attendant to his

claim.   On the basis of these facts, Williams appears prepared to

be an effective advocate on his own behalf, and that appointment

of counsel from our not unlimited pool of pro bono volunteers is

not necessary for adequate representation.   See Jennings v.

Sallie Mae, Inc., 358 F. A’ppx 719, 721 (7th Cir. 2009) (finding
                                  -6-

no abuse of discretion where district court denied motion for the

appointment of counsel where the plaintiff in a Title VII case

was “literate, ha[d] filed lawsuits in the past, ha[d] personal

knowledge of the facts relevant to her claims, amended her

complaint in accordance with the district court’s directions, and

submitted documents in support of her claims.”)

     B.    Potential merit of the claims

     The present record further does not reflect the level of

merit in plaintiff’s claims that would warrant appointment of

counsel.   See Poindexter, 737 F.2d at 1187 (holding that courts

can deny a plaintiff’s motion to appoint counsel if the

plaintiff’s case lacks apparent merit).    Although the plaintiff’s

complaint has survived a motion to dismiss, the defendant moved

for dismissal on the ground that the complaint was not timely,

not on any substantive grounds.    Some indication of the potential

merit of Williams’ claims may be gleaned from the Merit Systems

Protection Board’s lengthy decision on Williams’ appeal of his

termination.   (See Compl., Ex. 1, Merit Systems Protection Board

Initial Decision.)

     The MSPB decision analyzed Williams’ various theories of

discrimination and found that Williams had not set forth adequate

supporting evidence.   With regard to his claim of disparate

treatment in comparison to that of female employees, the Board

noted that Williams had conceded that none of the alleged

“comparable employees” had engaged in conduct similar to
                                  -7-

Williams’ so as to serve as an appropriate comparison.    (Id. at

44.)    The Board further found that Williams provided insufficient

evidence that his male gender motivated his supervisors to

stereotype him.    (Id. at 45.)   In particular, the Board noted

that Williams’ relationship with one supervisor “started out

well” as a mentoring relationship but “deteriorated” as the

supervisor perceived that Williams’ performance was deficient.

(Id.)     Finally, the Board found that Williams’ retaliation claim

was not supported because it was “clear” that Williams’

supervisor “had problems with [Williams’] performance” before

Williams filed a grievance regarding his treatment by the agency.

(Id. at 47.)    The Board’s decision is not dispositive of the

instant action and Williams’ complaint alleges additional grounds

for finding unlawful discrimination and retaliation that do not

appear to have been raised before or addressed by the Board.

Nonetheless, the Board’s decision represents the considered

judgment of a neutral arbiter that the discrimination and

retaliation claims that were presented lacked an adequate basis

in evidence.    The Board, moreover, did not express that the

evidence was in equipoise or otherwise difficult to weigh.

Although it is not dispositive, the prior administrative decision

thus casts some doubt on the strength of Williams’ present

claims.
                                    -8-

       C.    Demonstrated inability to retain counsel by other means

       Courts may decline to appoint counsel if the plaintiff has

not made a “reasonably diligent effort” to obtain counsel on his

own.   Poindexter, 737 F.2d at 1188 (quoting Bradshaw v.

Zoological Soc’y of San Diego, 662 F.2d 1301, 1319 (9th Cir.

1981)).     In order to demonstrate reasonable diligence, “the

plaintiff need not ‘exhaust the legal directory before a court

could appoint him an attorney.’”      Poindexter, 737 F.2d at 1188

(quoting Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th

Cir. 1977)).    Williams’ filing suggests that he approached one

law firm to represent him.    (Pl.’s Reply at 1.)   While Williams’

efforts need not have been exhaustive, one approach to one firm

falls short of demonstrating an inability to secure counsel on

his own.

       D.    Interests of justice

       The present action is not complicated and Williams has shown

over the course of the proceedings that he is capable of

adequately representing himself.      At this juncture, the merits of

Williams’ claims are uncertain and Williams has not shown ample

diligence in finding counsel on his own.     Williams’ pro se status

has not placed him at a gravely unfair disadvantage, and no novel

legal issues loom thus far about which the court could benefit

from the assistance of appointed counsel.     Although Williams

qualifies for indigent status, the interests of justice do not

warrant appointment of counsel at this time.
                                -9-

                      CONCLUSION AND ORDER

     Although Williams qualifies to proceed in forma pauperis, he

has not demonstrated that appointing counsel is warranted.

Accordingly, it is hereby

     ORDERED that the plaintiff’s motion [33] to appoint counsel

be, and hereby is, DENIED.   It is further

     ORDERED that the plaintiff’s motion [36] for leave to

proceed in forma pauperis be, and hereby is, GRANTED.

     SIGNED this 23rd day of July, 2012.


                                         /s/
                               RICHARD W. ROBERTS
                               United States District Judge
