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Mayes v. Doe

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

May 29, 2018

MARK MAYES, Plaintiff,
v.
JASON DOE, 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 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)).

         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.[1]

         II. BACKGROUND

         Mr. 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.[2] (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).

         Mr. 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).

         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. 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).

         The 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.

         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.” 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 ...


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