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Mayes v. Vandenburg

United States District Court, W.D. Washington, Seattle

May 29, 2018

MARK MAYES, Plaintiff,
v.
BRUCE VANDENBURG, et al., Defendants.

          ORDER OF DISMISSAL

          JAMES L.ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court are pro se Plaintiff Mark Mayes's complaint against Bruce Vandenburg, [1] Jeremy Mcmillan, and Bryant[2] (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)).

         The 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 moot.[3]

         II. BACKGROUND

         Mr. 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.)

         Mr. 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.)

         Mr. Mayes brought suit against Domino's on May 15, 2018.[4] (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).

         III. ANALYSIS

         A. Motion to Appoint Counsel

         Mr. 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 Cir. 1991).

         The 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.

         B. Section 1915 Review

         Title 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 factual ...


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