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Pralle v. Walmart Stores, Inc.

United States District Court, D. Kansas

June 30, 2017

JANET PRALLE, Plaintiff,
v.
WALMART STORES, INC., Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge

         The plaintiff Janet Pralle pro se brings this action alleging claims of sexual harassment, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ECF# 63, Pretrial Order, p. 3. The case comes before the court on the plaintiff's renewed motion for appointment of counsel (ECF# 73), the plaintiff's failure to respond to the court's order to show cause (ECF# 72), and the defendant Walmart Stores, Inc.'s motion for summary judgment (ECF# 66).

         In April of 2005, the defendant Walmart Stores, Inc. (“Walmart”) hired Janet Pralle to work as a cashier at its store in Marysville, Kansas, and she later worked as a courtesy desk associate. ECF# 63, Pretrial Order, p. 3. Walmart terminated the plaintiff on December 7, 2012, after she received written coachings on three separate dates, two in November of 2012 and one on December 3, 2012. Id. at p. 4. This lawsuit was filed in July of 2015. As reflected in the pretrial order, the plaintiff alleges she reported to the store manager and the customer service manager that her supervisor was sexually harassing a store vendor. After making this report, the plaintiff alleges she was treated differently, threatened, and retaliated against such that she experienced a hostile work environment, harassment and eventual termination. ECF# 63, pp. 6-8, 9.

         The pretrial order states discovery was to be “completed by March 31, 2017, and is now complete. Id. at p. 11. The court extended the pretrial order's deadline for filing dispositive motions to May 10, 2017, (ECF #65), and the defendant Walmart filed its motion for summary judgment on that day. The defendant complied with D. Kan. Rule 56.1(f) and provided the required notice to a pro se litigant. ECF# 68. This notice, in part, warned that, “If you do not respond to the Motion for Summary Judgment on time with affidavits and/or documents contradicting the material facts asserted by the Defendant, the Court may accept Defendant's facts as true, in which event your case may be dismissed and judgment entered in Defendant's favor without a trial.” Id. at pp. 1-2. On May 11, 2017, the plaintiff filed a pleading seeking an “extension of time to file dispositive motions due to an attorney currently looking into my case file.” ECF# 69. In this printed pleading, the plaintiff refers to her original request for appointment of counsel because she finds “it very difficult to understand terms and the stating of the laws.” Id. The court granted this extension of dispositive motion deadline to June 9, 2017. ECF# 71.

         On June 14, 2017, the court issued an order to show cause as the plaintiff had filed nothing, and the deadline of May 31, 2017, for the plaintiff to file her response to the defendant's pending dispositive motion had passed, as had the deadline of June 9, 2017, for the plaintiff to file her own dispositive motion. ECF# 72. This order referred to an email that plaintiff had sent to the magistrate judge's chambers and that had been forwarded to the district court's chambers. The email said an attorney was evaluating her case, and more time was needed. The court's order pointed the plaintiff to D. Kan. Rule 6.1 for the filing of motions for extension of time and indicated the rule did not allow for an email to substitute for the filing of a motion. The court then ordered, “that the plaintiff shall have until June 23, 2017, to show cause why this court should not find the plaintiff to have waived her right to file a response to the defendant's summary judgment motion and grant the defendant's motion as uncontested pursuant to D. Kan. Rule 7.4(b).” Id. at p. 2.

         Instead of filing a motion for extension of time or a response to the show cause order by June 23, 2017, the plaintiff filed on June 26, 2017, a motion for appointment of counsel. ECF# 73. The plaintiff's appointment motion lists the names of at least six attorneys with whom she consulted. In an attached pleading, she further states that three attorneys were contacted in the past two months and that she “does not feel qualified to continue without one.” ECF# 73-1. This pleading concludes, “I am filing paperwork for appointment of counsel and financial statue along with a reply for to (sic) show cause why the court should not find the plaintiff to have waived her right to file.” ECF# 73-1. The plaintiff has filed an affidavit of financial status (ECF# 74) and has attached to it a motion to proceed without prepayment of fees (ECF# 74-1). The Magistrate Judge has already granted the plaintiff's request to proceed in forma pauperis. ECF# 6. There is nothing in the plaintiff's filings at ECF## 73 and 74 that respond to the court's show cause order.

         Motion for Appointment of Counsel ECF# 73

         In denying the plaintiff's original request for appointment of counsel, the Magistrate Judge's order fully addressed the governing law and the material factors applicable here:

Ms. Pralle also requests that she be appointed counsel. A party to a civil action has no constitutional right to appointment of counsel. Section 1915(e)(1) provides that the “court may request an attorney to represent any person unable to afford counsel.” In addition to determining the financial need of the movant, if the court determines the movant has a colorable claim, then it “should consider the nature of the factual issues raised in the claim and the ability of the plaintiff to investigate the crucial facts.” The Tenth Circuit has adopted several factors for determining whether appointment of counsel is appropriate, including: “the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present [her] claims, and the complexity of the legal issues raised by the claims.” The party moving for appointment of counsel bears the burden to convince the court there is sufficient merit to [her] claim to warrant appointment of counsel.
In support of her motion, Ms. Pralle provides the court with some of her background, explaining that she “stood up for what [s]he felt was right and was wrongfully terminated and humiliated for believing [she] did right.” She further asserts that she “enjoyed working at Walmart and did a very nice job for them.” She states that where she lives there are “very few attorneys let alone good cell phone service” and she lists several attorneys she contacted, but who apparently declined to take her case.
Ms. Pralle has not offered any argument that her case involves unique or unusually complicated factual or legal issues. She alleges wrongful termination in retaliation for her reporting sexual harassment in the workplace. She has not suggested any unique circumstances hampering her ability to prosecute her claims. The court can assume that Ms. Pralle lacks formal legal education or experience, but this is true of most pro se litigants. Therefore, Ms. Pralle's motion for the appointment of counsel is denied without prejudice.
As a pro se litigant Ms. Pralle is personally responsible for her case.

ECF# 6, pp. 2-3 (footnotes and citations omitted). The plaintiff did not seek review of the Magistrate Judge's order.

         The plaintiff's current motion for appointment does not address any of the grounds on which the Magistrate Judge relied in denying her first motion. The plaintiff's feeling that she is not qualified to continue does not meaningfully address any of the relevant factors. Subjective feelings put ...


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