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Pickett v. State

United States District Court, D. Hawaii

March 12, 2018

REBECCA W. PICKETT, Plaintiff,
v.
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

         INTRODUCTION

         On 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.[1] If Pickett decides to proceed with this action, she must pay the appropriate filing fee by no later than April 2, 2018.

         DISCUSSION

         Because 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)).

         I. Plaintiffs IFP Application Is Denied

         Federal 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 omitted).

         When 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).

         Here, 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 Guidelines, https://www.federalregister.gov/documents/2018/01/18/2018-00814/annual-update -of-the-hhs-poverty-guidelines.[2] 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.

         II. Plaintiffs Motion For Appointment Of Counsel Is Denied

         Pickett 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).

         Courts 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)).

         A. Plaintiffs Financial Resources

         First, 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 ...


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