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Sandowski v. Kelly

United States District Court, D. Hawaii

May 25, 2018

RICHARD J. SANDOWSKI, Plaintiff,
v.
JOHN F. KELLY, ET AL., Defendants.

          FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL [1]

          Richard L. Puglisi United States Magistrate Judge.

         Before the Court is Plaintiff's Request for Appointment of Counsel Under the Civil Rights Act of 1964: 42 U.S.C. § 2000e-5(f)(1)(B). ECF No. 26. The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawaii. After careful consideration of the materials submitted by Plaintiff, the Court FINDS and RECOMMENDS that Plaintiff's Request for Appointment of Counsel be DENIED.

         BACKGROUND

         Plaintiff, proceeding pro se, filed a Complaint on September 19, 2017, against the John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration); Doug Rolefson, Supervisor Transportation Security Officer; Genoa Lopez, Transportation Security Officer; Joan De La Cruz, Supervisor Transportation Security Officer; Marc Myakawa, Supervisor Transportation Security Officer; and Stan Tadaki, Assistant Federal Security Director. ECF No. 1. Plaintiff alleges that Defendants unlawfully retaliated against him and terminated him based on his race and religion in violation of Title VII of the Civil Rights Act of 1964. See Id. Title VII prohibits employment discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).

         DISCUSSION

         There is no constitutional right to the appointment of counsel in employment discrimination cases. Ivey v. Bd. of Regents of Univ. of Ala., 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). “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). The court should 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's Financial Resources

         First, Plaintiff has not demonstrated that he does not have any financial resources. Plaintiff indicated in his Request for Appointment of Counsel that he and his spouse are currently employed; however, Plaintiff did not complete the requested information regarding monthly income. See ECF No. 26 at 4. Without this information, the Court is unable to determine whether Plaintiff's financial resources weigh against or in favor of appointing counsel.

         B. Plaintiff's Efforts to Obtain Counsel

         Second, the Court will consider whether Plaintiff made “what can be considered a reasonably diligent effort under the circumstances to obtain counsel.” Bradshaw v. Zoological Soc'y of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981). Here, Plaintiff lists two attorneys in his Request for Appointment of Counsel that he has contacted. Id. at 3. However, Plaintiff does not provide any information regarding when he contacted those attorneys or the attorneys' response to his request for representation. Id. While the Court recognizes that Plaintiff has made some effort to retain counsel, the Court notes that greater efforts could be made. Accordingly, the Court finds that Plaintiff has not made a reasonably diligent effort under the circumstances to obtain counsel. The Court therefore finds that this factor weighs against appointing counsel.

         C. The Merit of Plaintiff's Claim

         Third, Plaintiff must show that his claim has “some merit.” Bradshaw, 662 F.2d at 1319. A person claiming to be aggrieved by an unlawful employment practice may file a charge with the United States Equal Employment Opportunity Commission (“EEOC”). 42 U.S.C. § 2000e-5(b). In evaluating the merits of the claim, the court should give “appropriate weight” to the EEOC's determination regarding Plaintiff's claim. Bradshaw, 662 F.2d at 1319-20. In instances where the EEOC has found no reasonable cause, the court should ask the plaintiff why he considers the EEOC's determination to be in error. Id. at 1309 n.20 (citing Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir. 1977). “[A] negative EEOC determination, together with patently frivolous rebuttals by the plaintiff, would militate against appointment of a lawyer.” Jenkins v. Chem. Bank, 721 F.2d 876, 880 (2d Cir. 1983); see also Bradshaw, 662 F.2d at 1309 n.20 (“[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 heavily in the scales against appointing an attorney.” (quoting Caston, 556 F.2d at 1309)). In addition to the EEOC's determination, the court may consider the allegations in Plaintiff's Complaint in determining whether his claims have some merit. See Bradshaw, 662 F.2d at 1319.

         Here, Plaintiff attached to his Request for Appointment of Counsel the Decision that he received from the EEOC. See ECF No. 1 at 20-23. That Decision states that the EEOC concluded that substantial evidence supported the Administrative Judge's determination that Plaintiff had not proven discrimination as alleged. Id. at 21. Plaintiff's Request for Appointment of Counsel is made on a pre-printed form, which includes a section that asks Plaintiff for the reasons why he is questioning the EEOC's determination. See ECF No. 26 at 3. However, Plaintiff did not provide any information in that section. Plaintiff's failure to complete this section prevents the Court from determining why Plaintiff thinks that the EEOC's determination was in error. After carefully considering the EEOC's Decision and the allegations contained in the Complaint, the Court concludes that the third factor weighs against appointment of counsel.

         D. ...


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