United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
Stephen Turner, proceeding in forma pauperis,
brought this action on December 15, 2016, alleging that his
employer, Defendant Revana, discriminated against him because
of his race and/or color in violation of Title VII of the
Civil Rights Act of 1964. (Doc. 1.) At issue are Turner's
Motion to Add Judgment from Arizona Labor Department Agency
to This Civil Case, (Doc. 7), and Motion for Appointment of
Counsel, (Doc. 8). For the following reasons, both motions
Motion to Add Judgment from Arizona Labor Department
requests that the Court “add the judgment ordering
Revana to pay me commissions owed. The time limit to initiate
the claim form/court order to be sent to Revana requesting
payment has expired.” (Doc. 7.) It is not clear from
the motion what Turner is asking the Court to do. To the
extent Turner is seeking leave to amend his complaint to add
an additional claim for relief against Revana, he does not
need permission from the Court at this stage of the
litigation. Pursuant to Federal Rule of Civil Procedure
A party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
require, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
has not yet served Revana with the complaint. If Turner wants
to allege an additional claim to relief, he may amend his
complaint as a matter of course without prior permission from
the Court. Turner's Motion to Add Judgement From Arizona
Labor Department, which the Court interprets as a motion for
leave to amend the complaint, therefore is denied as moot.
Motion for Appointment of Counsel
is no constitutional right to the appointment of counsel in
civil cases, but Title VII gives the court broad discretion
to appoint counsel “[u]pon application by the
complainant and in such circumstances as the court may deem
just.” 42 U.S.C. § 2000e-5(f)(1)(B); Ivey v.
Board of Regents of Univ. of Alaska, 673 F.2d 266, 269
(9th Cir. 1982). When considering such a request,
“[t]he court is required to assess: (1) the
plaintiff's financial resources, (2) the efforts made by
plaintiff to secure counsel, and (3) whether the
plaintiff's claim has merit.” Bradshaw v.
Zoological Soc. of San Diego, 662 F.2d 1301, 1318 (9th
Cir. 1981) (citing Caston v. Sears, Roebuck &
Co., 556 F.2d 1305, 1308-10 (5th Cir. 1977)). The
plaintiff has the burden of persuasion as to all three
factors, and an unfavorable finding as to any one factor may
defeat the request. Miljkovic v. Univ. of Hawaii,
Civ. No. 09-00064 ACK-KSC, 2010 WL 346450, at *1 (D. Haw.
Jan. 27, 2010) (citing Caston, 556 F.2d at 1310;
Castner v. Colorado Springs Cablevision, 979 F.2d
1417, 1421 (10th Cir. 1992); Darden v. Illinois Bell Tel.
Co., 797 F.2d 497, 501 (7th Cir. 1986)).
Court's December 16, 2016 order, (Doc. 5), granting
Turner's motion to proceed in forma pauperis
“a fortiori resolve[s] the first issue,
” in his favor because, “[a] lesser showing of
indigency is required to satisfy the test for appointment of
counsel.” Bradshaw, 662 F.2d at 1319. Turner,
however, has not carried his burden on the remaining two
Turner does not address his efforts to secure counsel.
Although a plaintiff is not expected “to exhaust the
legal directory, ” Caston, 556 F.2d at 1309,
he must make “a reasonably diligent effort under the
circumstances to obtain counsel, ” Bradshaw,
662 F.2d at 1319. The court must consider both the quantity
and quality of a plaintiff's efforts. See Hosea v.
Donley, No. 5:11-cv-02892 EJD, 2012 WL 5373406, at *1-2
(N.D. Cal. Oct. 30, 2012). “Factors to be considered
include the number of attorneys contacted, the availability
of counsel in the geographical area who represent employment
discrimination claimants, and the plaintiff's possible
skill or lack of skill at obtaining such help.”
Castner, 979 F.2d at 1422. The court should also
consider the reasons that each attorney contacted refused to
take the case. Reddy v. Precyse Solutions LLC, No.
1:12-cv-2061 AWI SAB, 2013 WL 2603413, at *2 (E.D. Cal. June
11, 2013). At a minimum, “[a] reasonably diligent
attempt to secure counsel means . . . speaking to an attorney
about the merits of the case and pursuing a contingent fee
arrangement.” Mitchell v. Champs Sports, 42
F.Supp.2d 642, 649 (E.D. Tex. 1998). Turner has not made this
before the court may appoint counsel in an employment
discrimination case, the plaintiff must demonstrate that his
case has “some merit.” Bradshaw, 662
F.2d at 1319. Here, Turner alleges that Revana discriminated
against him on the basis of his race and/or color by, among
other things, terminating his employment, failing to promote
him, imposing upon him terms and conditions of employment
that were different from other employees, and by neglecting
to register him and his pet for health insurance. (Doc. 1.)
Turner filed these charges against Revana with the Equal
Employment Opportunity Commission (EEOC) on August 19, 2016.
(Id. at 4.) On September 28, 2016, the EEOC issued
Turner a Notice of Right to Sue Letter, in which the EEOC
explained that it “does not believe that additional
investigation would result in our finding a violation.”
(Id. at 15.)
issue, the EEOC's administrative finding is highly
probative. Castner, 979 F.2d at 1422. Although the
court may not “give preclusive effect to an EEOC
finding that the evidence does not support a finding of
discrimination, ” the court should “inquire of
plaintiff as to the validity of the no reasonable cause
determination and why plaintiff considers the determination
to be in error.” Id.; Bradshaw, 662
F.2d at 1309 n.20 (quoting Caston, 556 F.2d at
1309). In addition to the allegations in the plaintiff's
complaint, the court may consider the EEOC's finding, the
plaintiff's reasons for believing the agency's
determination is erroneous, the EEOC's investigative
file, and other information provided by the plaintiff.
Terry v. Haw. Air Nat. Guard, Civ. No.
13-00295-LEK-RLP, 2013 WL 3354562, at *2 (D. Haw. July 3,
2013); Siales v. Haw. State Judiciary, Civ. No.
11-00299 LEK-RLP, 2011 WL 2118573, at *5 (D. Haw. May 19,
2011) report and recommendation adopted, Civ. No.
11-00299-LEK-RLP, 2011 WL 2115854 (D. Haw. May 26, 2011).
“[A] finding that the EEOC determination is supported
by substantial evidence in the investigative file and that
plaintiff's objections thereto are patently frivolous
would weigh ...