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 Jason Doe and Loring Job Corps Center
(“Job Corps”) (collectively,
“Defendants”) (see Compl. (Dkt. # 5));
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 under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2000e-17, against Jobs
Corps and Jason Doe, a teacher. (See Compl. at 3-4.) He
alleges that he “was subject[ed] to disparate
treatment” based on race during his time in Job Corps;
that Jason Doe “choked and harassed” him; and
that he was “later assaulted [and] then kick[ed] out
[of] the program.” (Id. at 4.) Mr. Mayes was
allegedly terminated in retaliation based on those events
(id.), and seeks $1, 000, 000.00 in damages
(id. at 6).
Mayes filed a charge with the Equal Employment Opportunity
Commission (“EEOC”). (Id. at 6, 8.)
Based on its investigation, the EEOC concluded that Mr.
Mayes's “charge was not timely filed” because
he “waited too long after the date(s) of the alleged
discrimination to file [his] charge.” (Id. at
8.) On February 27, 2018, the EEOC issued a notice of Mr.
Mayes's right to sue (id.), and Mr. Mayes filed
this suit on May 15, 2018 (id. at 1).
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. Paratransit Servs., 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 plaintiff's financial resources; (2) the
efforts made by the plaintiff to secure counsel on his or her
own; and (3) the merit of the plaintiff's claim.”
Johnson v. U.S. Dep't of Treasury, 939 F.2d 820,
824 (9th Cir. 1991).
court concludes that Mr. Mayes's submissions do not
support the appointment of counsel. First, Mr. Mayes makes an
insufficient showing of his efforts to secure counsel on his
own. (See MTA at 2.) He merely states that he
“contacted and e-mailed at least 5 law firms” but
was told “that [his] case was not for enough
money.” (Id.) He does not indicate, however,
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. 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.” Bell Atl. 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 in Federal
Rule of Civil Procedure 8 does not require ...