Oviedo v. Lowes Home Impr Inc

United States Court of Appeals
Fifth Circuit
F I L E D
June 7, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
PER CURIAM:*
Olga Oviedo appeals the dismissal of her
suit against her former employer, Lowe’s
Home Improvement (“Lowe’s”), and the dis-
trict court’s refusal to appoint counsel for her.
We affirm.
I.
Oviedo, proceeding pro se, alleged national
origin discrimination under title VII of the Civ-
il Rights Act of 1964 and a variety of other
claims. From the start of the litigation, she
made repeated requests that the district court
appoint counsel, which the court denied. The
court set a deadline of May 31, 2005, for com-
pleting discovery.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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

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3
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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