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Cohn v. Smith

United States District Court, D. Hawaii

January 3, 2019

GEORGE R. COHN, Plaintiff,
v.
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 COUNSEL[1]

          DERRICK K. WATSON DISTRICT JUDGE.

         On 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.

         I. The IFP Application

         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). 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).

         In the 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.

         In 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.

         II. Screening of Cohn's Complaint

         The 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).

         A. The Complaint

         In his 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).

         Cohn 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 2016.

         The ADA 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).

         Under 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).

         First, 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 ...


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