United States District Court, D. Hawaii
REBECCA W. PICKETT, Plaintiff,
STATE OF HAWAII, DEPARTMENT OF EDUCATION, KAUAI DISTRICT, Defendants.
ORDER (1) DENYING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
Derrick K. Watson, United States District Judge
March 7, 2018, Plaintiff Rebecca W. Pickett, proceeding pro
se, filed a Complaint against the State of Hawaii, Department
of Education ("DOE"), alleging gender
discrimination and retaliation in violation of Title VII.
Dkt. No. 1. Pickett also filed an Application to proceed
in forma pauperis ("IFP Application") and
a Motion for Appointment of Counsel. Dkt. Nos. 3 and 4. For
the reasons that follow, the Court DENIES both the IFP
Application and Motion for Appointment of
Counsel. If Pickett decides to proceed with this
action, she must pay the appropriate filing fee by no later
than April 2, 2018.
Pickett is appearing pro se, the Court liberally construes
her filings. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987) ("The Supreme Court has instructed the
federal courts to liberally construe the 'inartful
pleading' of pro se litigants.") (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
Plaintiffs IFP Application Is Denied
courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an
affidavit that demonstrates an inability to pay. See
28 U.S.C. § 1915(a)(1). "An affidavit in support of
an IFP application is sufficient where it alleges that the
affiant cannot pay the court costs and still afford the
necessities of life." Escobedo v. Applebees,
787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v.
E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339
(1948)); see also United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (The affidavit must "state the
facts as to affiant's poverty with some particularity,
definiteness and certainty.") (internal quotation
reviewing an application filed pursuant to § 1915(a),
"[t]he only determination to be made by the court... is
whether the statements in the affidavit satisfy the
requirement of poverty." Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S.
at 339, the applicant must nonetheless show that he or she is
"unable to pay such fees or give security
therefor." 28 U.S.C. § 1915(a).
the IFP Application indicates that Pickett earns gross wages
of $3, 087.00 and take-home pay of $1, 797.57 per bi-monthly
pay period (twice per month). She lists debts in the
following amounts: $75, 286.69 (student loan); and $8, 312.69
(personal loan). Pickett also lists the following assets: an
automobile valued at $19, 809.41; a tax-free annuity with a
net value of $9, 549.02; and $23.51 in a checking or savings
account. Based upon the IFP Application, Pickett's
income, taking into account her liabilities and assets, falls
above the poverty threshold identified by the Department of
Health and Human Services ("HHS") 2018 Poverty
Guidelines. See Annual Update of the HHS Poverty
-of-the-hhs-poverty-guidelines. Accordingly, the Court finds that
Pickett has failed to make the required showing under Section
1915 to proceed without prepayment of fees and DENIES her IFP
Application. If Pickett wishes to proceed with this action,
she must remit the appropriate filing fee.
Plaintiffs Motion For Appointment Of Counsel Is
also filed a Motion for Appointment of Counsel under the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1)(B).
Dkt. No. 4. There is no constitutional right to the
appointment of counsel in employment discrimination cases.
Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d
266, 269 (9th Cir. 1982). Title VII authorizes the
appointment of 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). Under Title
VII, a court should only appoint counsel under
"exceptional circumstances." DeCosta v.
Hawaii, 2010 WL 5390130, at *2 (D. Haw. Dec. 20, 2010)
(citing Agyeman v. Corr. Corp. of Am., 390 F.3d
1101, 1103 (9th Cir. 2004)). "The decision to appoint
counsel is left to the sound discretion of the district
court." Johnson v. U.S. Treasury Dep 't, 27
F.3d 415, 416 (9th Cir. 1994) (citations omitted).
generally consider the following three factors in determining
whether to appoint counsel: "(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." Id. at 416-17
(citations omitted). A plaintiff has the burden of persuasion
as to all three factors, and an unfavorable finding as to any
one factor may be fatal to the request. See Williams v.
24 Hour Fitness USA, Inc., 2014 WL 7404604, at *2 (D.
Haw. Dec. 30, 2014) (citing Miljkovic v. Univ. of
Hawaii, 2010 WL 346450, at *1(D. Haw. Jan. 27, 2010)).
Plaintiffs Financial Resources
Plaintiffs Motion indicates that she is employed by the
Kawaikini New Century Public School and makes $3, 087.00
(gross) per month. Dkt. No. 4 at 5. She earned additional
income during the past twelve months ($206.01 from Kamehameha
Schools); pays $560.00 per month in rent; and lists monthly
payment amounts due on her various loans and other debts
($407.62; $25.00; $28.00; $15.00; $150.49; $337.00; $500.00;
$100.00). Id. at 6-7. Based on the information
provided by Pickett, and for the reasons discussed ...