United States District Court, W.D. Washington, Seattle
ORDER OF DISMISSAL
L.ROBART UNITED STATES DISTRICT JUDGE
the court are pro se Plaintiff Mark Mayes's
complaint against Bruce Vandenburg,  Jeremy Mcmillan, and
Bryant (collectively, "Domino's")
(see Compl.); Magistrate Judge Brian A.
Tsuchida's order granting Mr. Mayes in forma
pauperis ("IFP") status and recommending that
the court review his complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) (IFP Order (Dkt. # 4) at 1); Mr. Mayes's
motion to appoint counsel (MTA (Dkt. # 6)); and Mr.
Mayes's motion for the issuance of the summons (Mot.
(Dkt. # 7)).
court first concludes that Mr. Mayes has not met his burden
of establishing the circumstances that warrant appointment of
counsel. Thus, the court denies his motion to appoint
counsel. Additionally, under 28 U.S.C. § 1915(e),
district courts have authority to review IFP complaints and
must dismiss them if "at any time" it is determined
that a complaint is frivolous, malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2); see also Id. §
1915A(b)(1); Lopez v. Smith, 203 F.3d 1122, 1127
(9th Cir. 2000) (clarifying that § 1915(e) applies to
all IFP proceedings, not just those filed by prisoners). As
discussed below, Mr. Mayes's complaint falls within the
category of pleadings that the court must dismiss. Because
the court dismisses Mr. Mayes's complaint, Mr.
Mayes's motion to issue a summons is likewise denied as
Mayes brings suit against the owner and managers of the
Domino's where he worked. (See Compl. at 3-4.)
He alleges that he "was subjected to a hostile work
environment[, ] [disparate treatment[, ] and racial
harassment from both of [his] managers." (Id.
at 4.) Less than a week after Mr. Mayes complained about this
behavior, he was allegedly terminated in retaliation.
(Id. at 4-5.) Mr. Mayes seeks $1, 000, 000.00 in
monetary and punitive damages. (Id. at 6.)
Mayes filed a charge with the EEOC on January 31, 2018.
(Id.) Based on its investigation, the EEOC was
"unable to conclude that the information obtained
establishes violations of the statutes." (Id.
at 7.) The EEOC issued a notice of Mr. Mayes's right to
sue on February 21, 2018. (Id.)
Mayes brought suit against Domino's on May 15,
2018. (See id.) On May 18, 2018,
Magistrate Judge Tsuchida, in granting Mr. Mayes IFP status,
recommended that the court review the complaint under 28
U.S.C. § 1915(e)(2)(B). (IFP Order at 1.) Mr. Mayes
subsequently filed two motions: one requesting appointment of
counsel and another seeking the issuance of summons.
(See MTA; Mot.) The court now addresses Mr.
Mayes's motion to appoint counsel and reviews his
complaint under 28 U.S.C. § 1915(e)(2)(B).
Motion to Appoint Counsel
Mayes requests that the court appoint counsel. (MTA at 1.)
"A plaintiff has no constitutional right to appointed
counsel for employment discrimination claims."
Shepherd-Sampson v. ParatransitServs., No.
C13-5888BHS, 2014 WL 3728768, at *2 (W.D. Wash. July 25,
2014). However, the court has authority to appoint counsel
for actions brought under Title VII pursuant to 42 U.S.C.
§§ 2000e-5(f)(1). See Id. Courts evaluate
three factors in determining appointment of counsel:
"(1) the plaintiffs financial resources; (2) the efforts
made by the plaintiff to secure counsel on his or her own;
and (3) the merit of the plaintiffs claim." Johnson
v. U.S. Dep't of Treasury, 939 F.2d 820, 824 (9th
court concludes that Mr. Mayes's submissions do not
support appointing counsel. Mr. Mayes makes only a limited
showing of his efforts to secure counsel on his own.
(See MTA at 2.) He merely states that he
"called several lawyers" but was told "the
case wasn't for enough money." (Id.) He
does not indicate how many attorneys he contacted, when he
contacted them, or if he checked with other entities that
provide pro bono legal services or could assist him in
securing pro bono representation. (See id.)
Moreover, Mr. Mayes makes no argument as to the likelihood of
success on the merits of his claims (see id.), and
after the court's independent review, the court cannot
say that his claims are likely to succeed because of the lack
of factual allegations to support Mr. Mayes's claims,
see infra § III.B. Indeed, the EEOC could not
conclude that the claims had merit. (Compl. at 7.) Thus, the
court denies Mr. Mayes's motion to appoint counsel.
Section 1915 Review
28 U.S.C. § 1915(e)(2)(B) authorizes a district court to
dismiss a claim filed IFP "at any time" if it
determines: (1) the action is frivolous or malicious; (2) the
action fails to state a claim; or (3) the action seeks relief
from a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2)(B). An IFP complaint must contain
factual allegations "enough to raise a right to relief
above the speculative level." BellAtl. Corp. v.
Twombly,550 U.S. 544, 555 (2007). The court need not
accept as true a legal conclusion presented as a factual
allegation. Ashcroft v. Iqbal,556 U.S. 662, 678
(2009). Although the pleading standard articulated by Federal
Rule of Civil Procedure 8 does not require "detailed