United States District Court, D. Hawaii
GEORGE R. COHN, Plaintiff,
DAN SMITH, Deputy and Acting Director NPS, Defendant.
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; (2) DISMISSING COMPLAINT WITH
LEAVE TO AMEND; AND (3) DENYING MOTION FOR APPOINTMENT OF
December 12, 2018, Plaintiff George R. Cohn, proceeding pro
se, filed a Complaint against Dan Smith, as the Deputy and
Acting Director of the National Park Service (NPS). Dkt. No.
1. Cohn also filed an application to proceed in forma
pauperis (“IFP Application”) and a motion
for appointment of counsel. Dkt. Nos. 2, 3.
The IFP Application
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). While Section 1915(a) does not
require a litigant to demonstrate absolute destitution,
Adkins v. E.I. Du Pont de Nemours & Co., 335
U.S. 331, 339 (1948), the applicant must nonetheless show
that he is “unable to pay such fees or give security
therefor, ” 28 U.S.C. § 1915(a).
IFP Application, Cohn states that he last worked in April
2018, last earned pay in May 2018, and his unemployment
insurance ended in July 2018. Cohn states that he receives
$690 per month in social security disability payments.
Further, Cohn states that he has $5, 000 in a checking or
savings account and owns $6, 500 in an individual retirement
account. Cohn also states, in his motion for appointment of
counsel, that his home is valued at $99, 000, and he has no
dependents. Further, Cohn states that he has regular monthly
expenses of $327 for AOAO fees, $35 for the bus, $125 for
electricity, $60 for a phone, and $225 for credit cards. Cohn
also states that he owes $3, 500 in attorney's fees
related to a probate matter.
light of the record set forth above, the Court finds that
Cohn has shown an inability to pay or give security for the
$400 filing fee while still affording the necessities of
life. See Escobedo v. Applebees, 787 F.3d 1226, 1234
(9th Cir. 2015); see also Mosely v. Awerbach, 2006
WL 2375050, at *3 (M.D. Fla. Aug. 15, 2006) (finding that an
IFP applicant's property ownership did not affect her
indigent status because she had no net income to allow for
payments on any loan against the property). As a result, the
Court GRANTS the IFP Application, Dkt. No. 2.
Screening of Cohn's Complaint
Court subjects each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening and can order
the dismissal of any claims it finds “frivolous,
malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). In
doing so, the Court liberally construes a pro se Complaint.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987). However, the Court cannot act as counsel for a pro se
litigant or supply the essential elements of a claim.
Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey
v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982).
Complaint, Cohn brings a claim of employment discrimination
for failure to hire on account of his disability. Although
the form on which Cohn filed the Complaint states that the
claim is being brought under Title VII of the Civil Rights
Act of 1964 (Title VII), because the claim is premised upon
alleged disability discrimination, the Court construes the
claim as having been brought under the Americans with
Disabilities Act (ADA).
makes the following factual allegations. He was not hired for
“position(s)” at the “Valor in the Pacific
group of monuments.” He received a score of 91, but he
did not receive any points for being blind or permanently
disabled. Cohn is a veteran, and he asserts that, as such, he
should have received 10 points for being blind, 10 points for
being permanently disabled, and 10 points for being a
veteran. For these categories, however, he received 0 points.
He further alleges that he worked at the USS Arizona Museum
Association between 1999 and 2000, and he read over 150 books
on segregation in the military during the period 1776 to
1954. He also alleges that he filed charges with the Equal
Employment Opportunity Commission (EEOC) or a state agency in
prohibits certain employers from discriminating against a
“qualified individual on the basis of disability in
regard to job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a).
the ADA, Cohn bears the burden of proving that (1) he is
disabled within the meaning of the statute, (2) he is a
“qualified individual” under the statute, and (3)
he was discriminated against because of his disability.
Bates v. United Parcel Serv., Inc., 511 F.3d 974,
988 (9th Cir. 2007) (en banc).
the ADA defines “disability” as, inter
alia, “a physical or mental impairment that
substantially limits one or more major life activities of
[an] individual.” 42 U.S.C. § 12102(1)(A). The ADA
states that “seeing” is a major life activity.
Id. § 12102(2)(A). In the Complaint, Cohn
alleges that he is “legally blind.” As a result,
for present purposes, the Court finds that Cohn has alleged
that he is disabled under the ADA.
the ADA defines a “qualified individual” as
someone “who, with or without reasonable accommodation,
can perform the essential functions of the employment
position that such individual holds or desires.” 42
U.S.C. § 12111(8). In the Complaint, Cohn does not
allege the essential functions of any employment position. In
fact, Cohn does not even allege the position(s) for which he
applied.It is, thus, impossible for the Court to
assess whether Cohn could perform the essential functions of
any job for which he may have applied. As a result, in
any amended complaint he may file, Cohn must allege: (1) the
position or positions to ...