United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
before the Court is pro se Plaintiff Kevin Lewis Hobson's
Request for Appointment of Attorney (Doc. 4). Pursuant to 28
U.S.C. § 1915(e)(2), the Court finds that Plaintiff has
not satisfied the pleading requirements of the Federal Rules
of Civil Procedure and fails to state a cause of action. The
Court will (i) deny Plaintiff's Request for Appointment
of Attorney (Doc. 4), (ii) dismiss the Amended Complaint
(Doc. 5) without prejudice, and (iii) grant Plaintiff leave
to file a Second Amended Complaint consistent with the
findings the Court sets forth herein.
Request for Appointment of Attorney (Doc. 4)
requests the appointment of counsel. There is no
constitutional right to the appointment of counsel in a civil
case. See Johnson v. U.S. Dep't of Treasury, 939
F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of Regents of
the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982).
“However, a court may under ‘exceptional
circumstances' appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1).”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(quoting Agyeman v. Coors. Corp. of Am., 390 F.3d
1101, 1103 (9th Cir. 2004)). “When determining whether
‘exceptional circumstances' exist, a court must
consider ‘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.'” Palmer, 560 F.3d
at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983)); see also Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991). “Neither of these
considerations is dispositive and instead must be viewed
together.” Palmer, 560 F.3d at 970 (citing
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
has not demonstrated a likelihood of success on the merits,
nor is he unable to present his arguments to the Court.
Plaintiff has not shown that exceptional circumstances are
present that would require the appointment of counsel in this
case. The Court will deny the Request for Appointment of
Attorney (Doc. 4).
Amended Complaint (Doc. 5)
Statutory Screening of In Forma Pauperis Complaint Pursuant
to 28 U.S.C. § 1915(e)(2)
Court must dismiss a complaint or portion thereof if a
plaintiff has raised claims that are legally frivolous or
malicious, that fail to state a claim upon which relief may
be granted, or that seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2);
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc) (noting that 28 U.S.C. § 1915(e)
“not only permits but requires” a court to sua
sponte dismiss an in forma pauperis complaint that
fails to state a claim); Calhoun v. Stahl, 254 F.3d
845, 845 (9th Cir. 2001) (“[T]he provisions of 28
U.S.C. § 1915(e)(2)(B) are not limited to
prisoners.”). If the Court determines that a pleading
could be cured by the allegation of other facts, a pro se
litigant is entitled to an opportunity to amend a complaint
before dismissal of the action. See Lopez, 203 F.3d
at 1127-29. The standards governing pleadings are summarized
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While
Rule 8 does not demand detailed factual allegations,
“it demands more than an unadorned, the
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. “[A] complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Thus, although a plaintiff's specific factual allegations
may be consistent with a constitutional claim, a court must
assess whether there are other “more likely
explanations” for a defendant's conduct.
Id. at 681. But as the United States Court of
Appeals for the Ninth Circuit has instructed, courts must
“continue to construe pro se filings liberally.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
A “complaint [filed by a pro se litigant] ‘must
be held to less stringent standards than formal pleadings
drafted by lawyers.'” Id. (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
The Amended Complaint Fails to State a Claim
attempts to bring an employment discrimination claim against
the Secretary of the Department of Veteran Affairs under
Title VII of the Civil Rights Act of 1964 (“Title
VII”), as codified at 42 U.S.C. §§ 2000e to
2000e-17, as well as the Americans with Disability Act of
1990 (“ADA”), as codified at 42 U.S.C.
§§ 12112-12117. The Amended Complaint supersedes
the original Complaint; therefore, the Court treats the
original Complaint as nonexistent in reviewing
Plaintiff's claims. Ferdik v. Bonzelet, 963 F.2d
1258, 1262 (9th Cir. 1992).
Title VII Claim
proceed with a Title VII claim, Plaintiff must show that he
filed a lawsuit within ninety days of receiving each
right-to-sue notice pursuant to 42 U.S.C. §
2000e-5(f)(1) and 29 C.F.R. § 1601.28(e). In addition,
an EEOC claim must itself be filed within 300 days after ...