Teresa Olivia Brown v. John Deere Product, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 16, 2012
No. 10-15339
Non-Argument Calendar JOHN LEY
CLERK
________________________

D.C. Docket No. 1:10-cv-00107-JRH-WLB

TERESA OLIVIA BROWN,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

versus

JOHN DEERE PRODUCT, INC.,
JOYE SEILBE,
Industrial Relations Representative, John Deere Products,

llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Southern District of Georgia
________________________

(March 16, 2012)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
Teresa Olivia Brown appeals the district court’s sua sponte dismissal,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), of her pro se complaint. In her

complaint she alleges employment discrimination based upon gender. On appeal,

Brown argues that the district court erred in denying her motion to appoint counsel

because she had demonstrated her lack of finances and was unable to obtain an

attorney on her own. Brown also asserts that she is entitled to equitable tolling

because several days before the deadline for filing her complaint she experienced a

traumatic incident in which several individuals broke into her house and searched

for valuables and drugs.

We review a district court’s decision not to appoint counsel for abuse of

discretion. Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir.

2007) (per curiam). “A plaintiff in a civil case has no constitutional right to

counsel.” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). Pursuant to 28

U.S.C. § 1915(e)(1), a court has the discretion to appoint counsel for an indigent

plaintiff, but counsel should be appointed only in exceptional circumstances.

Bass, 170 F.3d at 1320. Exceptional circumstances generally exist “where the

facts and legal issues are so novel or complex as to require the assistance of a

trained practitioner.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990).

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The facts and legal issues in this case are neither novel nor complex, and

Brown’s filings evidence an ability to communicate with the court. Therefore, the

district court did not abuse its discretion in denying Brown’s motion for

appointment of counsel.

A district court’s dismissal of a plaintiff’s complaint for failure to satisfy the

statute of limitations is subject to de novo review. Jackson v. Astrue, 506 F.3d

1349, 1352 (11th Cir. 2007). We review de novo the question of whether a

plaintiff is entitled to equitable tolling. Id. Pro se briefs and pleadings are to be

construed liberally. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998) (per curiam).

After exhausting administrative remedies, an individual with a claim under

Title VII of the Civil Rights Act of 1964 may initiate a civil lawsuit. Upon

receiving a right-to-sue letter from the Equal Employment Opportunity

Commission (“EEOC”), a plaintiff has ninety days to file a complaint. 42 U.S.C. §

2000e-5(f)(1). This time limit is non-jurisdictional and is therefore subject to

equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.

Ct. 1127, 1135 (1982). Nevertheless, we have held that “traditional equitable

tolling principles require a claimant to justify her untimely filing by a showing of

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extraordinary circumstances.” Jackson, 506 F.3d at 1353. We have stated that

extraordinary circumstances may include “fraud, misinformation, or deliberate

concealment.” Id. at 1355. Equitable tolling may be warranted if a person has an

extreme mental illness that deprives a person of the ability to timely file. Hunter

v. Ferrell, 587 F.3d 1304, 1308–10 (11th Cir. 2009) (per curiam).

Brown concedes that her complaint was filed more than ninety days after

she received a right-to-sue letter from the EEOC. Thus, unless Brown is able to

show extraordinary circumstances entitling her to equitable tolling, her complaint

was untimely. See Jackson, 506 F.3d at 1353.

Although Brown alleges that the district court clerk’s office should have

informed her that she could file for an extension of time by alleging extraordinary

circumstances, she has not identified any legal requirement in support of her

argument. Moreover, the inaction of the clerk’s office does not amount to

extraordinary circumstances because Brown has not alleged any misfeasance on

the part of the clerk’s office that would support tolling. See Id. at 1355. Nor did

the alleged home invasion, which took place two days before the ninety-day

deadline, amount to an extraordinary circumstance that would justify equitable

tolling. The facts alleged do not indicate that the experience deprived Brown of

the ability to timely file. Even after invasion, she had the ability to file her

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complaint.

AFFIRMED.