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Hobson v. McDonald

United States District Court, D. Arizona

September 13, 2016

Kevin Lewis Hobson, Plaintiff,
v.
Robert McDonald, et al., Defendants.

          ORDER

          Eileen S. Willett United States Magistrate Judge.

         Pending 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.

         I. DISCUSSION

         A. Request for Appointment of Attorney (Doc. 4)

         Plaintiff 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. 1986)).

         Plaintiff 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).

         B. Amended Complaint (Doc. 5)

         1. Statutory Screening of In Forma Pauperis Complaint Pursuant to 28 U.S.C. § 1915(e)(2)

         The 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 as follows.

         A 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 defendant-unlawfully-harmed-me accusation.” 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 curiam)).

         2. The Amended Complaint Fails to State a Claim

         Plaintiff 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).

         i. Title VII Claim

         To 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 ...


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