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Mayes v. Doe

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

July 2, 2018

MARK MAYES, Plaintiff,
v.
JASON DOE, et al., Defendants.

          ORDER OF DISMISSAL WITHOUT LEAVE TO AMEND

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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.

         As in 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.

         II. BACKGROUND

         Mr. 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. ¶¶ 3.2-3.5.)

         Mr. 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)).

         On May 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.)

         III. ANALYSIS

         A. Motion to Appoint Counsel

         Mr. 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).

         The 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 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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