United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO APPOINT COUNSEL, DECLINING TO
SERVE AND GRANTING LEAVE TO AMEND
J. PECHMAN UNITED STATES SENIOR DISTRICT JUDGE
has filed a pro se complaint employment
discrimination under Title VII of the Civil Rights Act, 42
U.S.C. §§ 2000e to 2000e-17. Dkt. No. 4. Before the
Court directs that a complaint be served on the Defendant, it
must screen the complaint to ensure that the alleged facts
state viable claims against proper defendants. The Court has
screened plaintiff's complaint and identified
deficiencies that plaintiff must correct before the Court
will order service. The Court finds and ORDERS:
Plaintiff was formerly employed at Steelhead Diner. He names
as defendant Spain Street LLC. Plaintiff alleges that between
October 2018 and April 27, 2019, he was subjected to
discriminatory treatment by personnel at the restaurant,
which consisted of the manager and the chef of the
establishment repeatedly referring to him as
“D-Train.” Plaintiff asserts that this
represented discrimination against him on the basis of his
national origin (Russian). Dkt. No. 1-1.
Once a complaint is filed in forma pauperis, the
Court must dismiss it prior to service if it “fails to
state a claim on which relief can be granted.” 28
U.S.C. § 1915(e)(2)(b)(ii). To avoid dismissal, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
The factual allegations must be “enough to raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
complaint may be dismissed if it lacks a cognizable legal
theory or states insufficient facts to support a cognizable
legal theory. Zixiang v. Kerry, 710 F.3d 995, 999
(9th Cir. 2013).
Court holds pro se plaintiffs to less stringent
pleading standards than represented plaintiffs and liberally
construes a pro se complaint in the light most
favorable to the plaintiff. Erickson v. Pardus, 551
U.S. 89, 93 (2007). Nevertheless, § 1915(e) “not
only permits but requires a district court to dismiss an in
forma pauperis complaint that fails to state a claim.”
Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000)
(en banc). When dismissing a complaint under § 1915(e),
the Court gives pro se plaintiffs leave to amend
unless “it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment.”
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
Plaintiff's complaint is deficient for at least the
following reason: (a) It is entirely unclear how even the
repeated use of the term “D-Train” constitutes an
act of discrimination on the basis of Plaintiff's
national origin. Plaintiff alleges no other acts or
statements. (b) It is not clear what the relationship of
Defendant Spain Street LLC is to the Steelhead Diner or to
the manager and chef who are alleged to have taken part in
the name-calling, nor are there any allegations that
Defendant Spain Street LLC directed the actions of the
accused individuals or was even aware of the actions of which
Based on the foregoing, the Court DECLINES to direct that
plaintiff's complaint be served and GRANTS him leave to
file an amended complaint within 30 days of
the date this Order is signed. If no amended
complaint is timely filed or if plaintiff files an amended
complaint that fails to correct the deficiencies identified
above, the Court may recommend that this action be dismissed
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state
a claim upon which relief may be granted.
amended complaint must carry the same case number as this
one. Plaintiff is advised that an amended pleading operates
as a complete substitute for an original pleading.
See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
Cir. 1992). Thus, any amended complaint must clearly identify
the defendant(s), the constitutional or federal statutory
claim(s) asserted, the specific facts that plaintiff believes
support each claim, and the specific relief requested.
Plaintiff has filed a motion to appoint counsel. Dkt. No. 6.
Generally, a person has no right to counsel in civil actions.
See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir.
1998). A court has discretion to appoint counsel for indigent
civil litigants pursuant to 28 U.S.C. § 1915(e)(1), but
an appointment of counsel should only be granted under
“exceptional circumstances.” Agyeman v.
Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004). When determining whether “exceptional
circumstances” exist, the Court considers “the
likelihood of success on the merits as well as the ability of
the [plaintiff] to articulate his claims pro se in light of
the complexity of the legal issues involved.”
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
contends that the use of the term “D-Train”
constituted discrimination against him on the basis of his
national origin. Plaintiff's complaint evinces little
likelihood of success on the merits and Plaintiff has shown
an ability to articulate his allegations in a lawsuit.
Plaintiff has not, therefore, presented exceptional
circumstances that would justify the appointment of counsel.
The motion to appoint counsel is therefore DENIED.
Clerk is directed to send Plaintiff the appropriate forms so