United States District Court, W.D. Washington, Seattle
ORDER OF DISMISSAL WITHOUT LEAVE TO AMEND
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Plaintiff Mark Mayes's amended complaint and
requests for appointment of counsel and issuance of summons.
(Am. Compl. (Dkt. # 9).) Because Mr. Mayes continues to fail
to state a claim, the court DISMISSES this matter without
leave to amend and without prejudice and DENIES his requests
for appointment of counsel and issuance of summons.
its prior order, the court first concludes that Mr. Mayes has
not met his burden of establishing the circumstances that
warrant appointment of counsel. (See 5/29/18 Order
(Dkt. # 8).) Additionally, under 28 U.S.C. § 1915(e),
district courts must review IFP complaints and dismiss those
complaints if “at any time” the court determines
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 amended complaint falls
within the category of pleadings that the court must dismiss.
Because the court dismisses Mr. Mayes's amended
complaint, Mr. Mayes's motion to issue a summons is
likewise denied as moot.
Mayes is proceeding pro se and in forma
pauperis (“IFP”). (See IFP Order
(Dkt. # 4).) Mr. Mayes, who is African American, brings suit
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2000e-17, against Loring Job Corps
(“Job Corps”) in Limestone, Maine, and Jason Doe,
a Job Corps teacher. (See Am. Compl. ¶¶
1.1-1.2, 3.2.) He alleges that he was treated differently
than white students based on race while in Job Corps; that
Jason Doe choked him; that he was physically assaulted by a
white student; and that he was retaliated against after he
complained about that conduct. (Id. ¶¶
Mayes filed a charge with the Equal Employment Opportunity
Commission (“EEOC”). (Id. ¶ 3.7,
Ex. 1; id., Ex. 2 (“EEOC Letter”).)
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.” (EEOC Letter at
7.) 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 (IFP Mot. (Dkt. # 1)).
18, 2018, Magistrate Judge Brian A. 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 dismissed his
complaint and denied the motions. (See 5/29/18
Order.) On June 19, 2018, Mr. Mayes filed an amended
complaint and renewed his requests for appointment of counsel
and issuance of summons. (See Am. Compl.)
Motion to Appoint Counsel
Mayes requests that the court appoint counsel. (Am. Compl.
¶ 3.9.) “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 ruling on the request:
“(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 appointment of counsel. Although Mr. Mayes provides
evidence of his attempts to secure counsel (see Am.
Compl. ¶ 3.9, Ex. 3), he again makes no argument as to
the likelihood of success on the merits of his claims
(see generally id.; see also 5/29/18 Order
at 4). After the court's independent review, the court
cannot say that his claims are likely to succeed because they
appear to be time-barred, see infra § III.B.
Thus, the court denies Mr. Mayes's motion to appoint
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 ...