(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-5035
Summary Calendar
JESSE J. PENNINGTON,
Plaintiff-Appellant,
VERSUS
TEXAS HIGHWAY DEPARTMENT
and GLENN C. CATHEY,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
91 MC 21
(March 31, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Pennington filed a motion for leave to proceed in forma
pauperis and a motion for appointment of counsel in the U.S.
District Court for the Eastern District of Texas at Lufkin (USDC)

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in connection with a claim that Pennington asserts he has against
the Texas Highway Department for discrimination on the grounds of
age and race in his employment. The district court referred the
motions to the magistrate judge for appropriate action. The
magistrate judge conducted a hearing, after which he recommended
that Pennington's motion to proceed in forma pauperis be denied,
and that his motion for appointment of counsel be granted subject
to the qualification that appointed counsel be permitted to
withdraw after thoroughly investigating Pennington's claims, if it
was determined that Pennington's claims were not sufficient to go
forward. The district judge accepted the magistrate judge's
recommendation regarding proceeding in forma pauperis but rejected
his recommendation regarding appointment of counsel and entered an
order denying both of Pennington's motions. Pennington then filed
a "brief for appellant" in this Court, acting pro se and filed a
motion in this Court for appointment of counsel, which was denied
by a member of this panel. Because Pennington is acting pro se, we
have treated this matter as an interlocutory appeal, even though it
is technically deficient in various respects as an interlocutory
appeal.
We AFFIRM the findings of the magistrate judge relating to the
right to proceed in forma pauperis and AFFIRM the order of the
district judge denying such motion.
As to the subject of appointment of counsel, the law is clear
that a prospective plaintiff seeking relief under Title VII of the
Civil Rights of Act of 1964, as amended, 42 U.S.C. §2000(e) et seq.

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or under the Age Discrimination and Employment Act of 1967, 29
U.S.C. § 621-34 has no absolute right to be represented by
appointed counsel; and the decision of whether to provide counsel
lies solely within the discretion of the district court. See,
Caston v. Sears, Roebuck and Co., 556 F.2d 1305 (5th Cir. 1977);
Neal v. IAM Local Lodge 2836, 722 F.2d 247 (5th Cir. 1984); and
Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990). While we
recognize that the magistrate judge in this case came to the
conclusion that the facts in this case were appropriate for the
appointment of counsel, the district judge obviously came to an
opposite conclusion on the same set of facts; and we are not
persuaded that the district judge abused his discretion in that
regard. We AFFIRM therefore the decision of the district judge to
deny the motion for appointment of counsel.
Since service of process has never been accomplished on either
of the named defendants, and no final order has been entered by the
district court in connection with this matter, we REMAND this case
to the trial court for the entry of an appropriate order fixing a
time frame within which Pennington shall prepare and file his
original complaint against the prospective defendants and secure
service of process on such defendants. Failing compliance with
such order, the trial judge may enter an order of dismissal for
want of prosecution in this cause.

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