Caseflicks

Court of Appeals for the Second Circuit • 1982

Ivey v. Board of Regents of University of Alaska

673 F.2d 266 | 1982 U.S. App. LEXIS 20624

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Takeaway

In short, this case shows that a pro se plaintiff must still plead specific facts linking each defendant to alleged discrimination, and that Title VII counsel may be denied when the claim appears insufficiently meritorious.

Background

Richard C. Ivey worked during the 1975–76 academic year as director of vocational classes at the Barrow Extension of the University of Alaska and at Inupiat University, a private institution in Barrow. A state investigation concluded that Ivey had claimed to teach courses that were not actually taught and that students received credit for attending them. The University of Alaska and the Inupiat Council on Postsecondary Education suspended and terminated him. Ivey was later convicted in Alaska state court on twenty-six felony counts of forgery and obtaining property by false pretenses arising from his employment duties; that conviction was under appeal when this case was decided.

Proceeding without a lawyer, Ivey sued under 42 U.S.C. §§ 1981, 1983, 1985(3), and Title VII. He alleged that defendants had jointly maintained racially segregated postsecondary education in the North Slope Borough and had fired him because he tried to desegregate the schools and expose corruption. He sought reinstatement, back pay, and injunctive relief. The district court denied his request for appointed counsel and dismissed the North Slope Borough and its mayor, Eben Hopson, for failure to state a claim. Ivey appealed those two rulings.

Issues

Issue #1

Whether Ivey's allegations stated a civil-rights or employment-discrimination claim against the North Slope Borough and Mayor Hopson.

Holding

No. The complaint did not allege specific facts connecting the Borough defendants to the asserted discriminatory employment practices.

Reasoning

A pro se civil-rights complaint receives a liberal reading, but liberal construction cannot add essential factual elements that the plaintiff did not plead. Conclusory assertions that officials participated in civil-rights violations do not suffice to survive a motion to dismiss.

Ivey alleged that the North Slope Borough provided substantial financial support to Inupiat University and otherwise intervened in its operations. But he did not identify a particular Borough policy, practice, decision, or action that caused or participated in his alleged discriminatory discharge or the alleged segregation of the educational system.

Financial support for, or generalized involvement with, a separate educational institution does not by itself establish a direct connection to an allegedly discriminatory employment practice. Because Ivey alleged no concrete conduct tying Hopson or the Borough to the claimed violations under §§ 1981, 1983, 1985(3), or Title VII, dismissal of those defendants was proper.

Issue #2

Whether the denial of Ivey's motion for appointed counsel under Title VII was immediately appealable.

Holding

Yes. The order was appealable under the collateral-order exception to the final-judgment rule.

Reasoning

Although the parties had not resolved the appealability question at oral argument, intervening Ninth Circuit authority in Bradshaw v. Zoological Society of San Diego held that a denial of counsel in a Title VII action is reviewable immediately under the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp.

Under that authority, the court could review the district court's interlocutory refusal to appoint counsel even though the underlying discrimination case had not yet reached a final judgment.

Issue #3

Whether the district court abused its discretion by declining to appoint counsel for Ivey under 42 U.S.C. § 2000e-5(f)(1).

Holding

No. Given the apparent lack of merit in Ivey's employment-discrimination claims, the denial of appointed counsel was within the district court's broad discretion.

Reasoning

Title VII does not create a constitutional right to appointed counsel. Instead, § 2000e-5(f)(1) permits appointment when the court deems it just, and appellate review is limited to determining whether the district court abused its discretion.

The relevant considerations are the plaintiff's financial resources, the efforts made to obtain counsel independently, and the apparent merit of the claims. Ivey met the first two considerations: he was allowed to proceed in forma pauperis, and the record showed that ten attorneys had declined to represent him.

Because the district judge did not state reasons for denying counsel, the court inferred that the denial rested on the remaining consideration—the claims' lack of sufficient merit. Ivey's twenty-six felony convictions for forgery and obtaining money by false pretenses in connection with his job made it impossible for the appellate court to conclude that the district court abused its discretion in finding his discrimination claims too weak to warrant appointed counsel.