Shah v. Employment Development Department

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/5/2011 GRANTING plaintiff's 2 Motion to Proceed In Forma Pauperis but DENYING his 3 Motion for Appointment of Counsel without prejudice. Clerk directed to send Mr. Shah 1 Summons, 2 USM -285 forms, an instruction sheet, a copy of the 1 Complaint, the Court's Scheduling Order, and new case documents. US Marshal shall serve process and plaintiff shall supply them, w/in 14 days from filed date of Order, all documents needed to serve process. Plaintiff shall file, w/in 14 days, a Statement with Court that said documents have been submitted to USMS. (cc: US Marshal Service) (Marciel, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

FERNANDO SHAH,

11
12
13

Plaintiff,

No. CIV S-11-318 GEB EFB PS

vs.
EMPLOYMENT DEVELOPMENT
DEPARTMENT,

14
Defendant.
15
16

ORDER
/

This case, in which plaintiff is proceeding in propria persona, was referred to the

17

undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule

18

302(c)(21). Plaintiff requests authority pursuant to 28 U.S.C. § 1915 to proceed in forma

19

pauperis, and has submitted the affidavit required thereunder which demonstrates that plaintiff is

20

unable to prepay fees and costs or give security thereof. Accordingly, the request to proceed in

21

forma pauperis will be granted. 28 U.S.C. § 1915(a).

22

Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant

23

to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is

24

untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be

25

granted, or seeks monetary relief against an immune defendant. Here, plaintiff’s complaint

26

alleges that his employer, the California Employment Development Department, violated the
1

1

Americans with Disabilities Act (“ADA”) by failing to provide plaintiff with a reasonable

2

accommodation, failing to promote plaintiff, and reducing plaintiff’s hours as a result of his

3

disability. Compl., Dckt. No. 1. Plaintiff contends that he has a permanent disability, Type II

4

diabetes, and other possible ailments. Id.

5

Although plaintiff alleges that defendant violated “Title VII” of the ADA, no such Title

6

exists. Rather, it appears that plaintiff intends to state a claim under Title I of the ADA. In order

7

to state a Title I ADA claim, plaintiff must show that he is (1) disabled under the ADA; (2) a

8

qualified individual able to perform the essential functions of the job; and (3) discriminated

9

against because of the disability. See 42 U.S.C. § 12112(a) (“No covered entity shall

10

discriminate against a qualified individual on the basis of disability in regard to job application

11

procedures, the hiring, advancement, or discharge of employees, employee compensation, job

12

training, and other terms, conditions, and privileges of employment.”); Bates v. United Parcel

13

Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007). The ADA defines a disability as (1) a physical or

14

mental impairment that substantially limits one or more major life activities; (2) a record of such

15

an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1).

16

Although the complaint is conclusory, plaintiff alleges each of the required elements.

17

Therefore, the undersigned cannot state, based on the present record, that the action is frivolous

18

or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief

19

against an immune defendant. Accordingly, the undersigned will direct that the complaint be

20

served on defendant.

21

Plaintiff also requests appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f). Dckt.

22

No. 3. However, the statute plaintiff cites authorizes the appointment of counsel in cases

23

brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), not cases brought under the

24

ADA. Disability is not a protected class under Title VII. See Williams v. Holiday Inn, 1996 WL

25

162992 (N.D. Cal. Mar. 13, 1996) (dismissing all of the employee’s disability discrimination

26

claims under Title VII).
2

1

Nonetheless, to the extent plaintiff’s request for appointment of counsel is construed as a

2

request for counsel pursuant to 28 U.S.C. § 1915(d), that request is denied without prejudice.

3

The court may only designate counsel to represent an indigent civil litigant pursuant to 28 U.S.C.

4

§ 1915(d) in certain exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

5

Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990); Richards v. Harper,

6

864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional circumstances exist, the

7

court must evaluate (1) the plaintiff’s likelihood of success on the merits; and (2) the ability of

8

the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

9

Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff’s likelihood of success, the

10

complexity of the issues, or the degree of plaintiff’s ability to articulate his claims amount to

11

exceptional circumstances justifying the appointment of counsel at this time.

12

Accordingly, IT IS ORDERED that:

13

1. Plaintiff’s request to proceed in forma pauperis, Dckt. No. 2, is granted.

14

2. Plaintiff’s request for appointment of counsel, Dckt. No. 3, is denied without

15
16
17
18

prejudice.
3. The Clerk of the Court is directed to issue forthwith all process pursuant to Federal
Rule of Civil Procedure 4.
4. The Clerk of Court shall send plaintiff two USM-285 forms, one summons, a copy of

19

the complaint, this court’s scheduling order, and the forms providing notice of the magistrate

20

judge’s availability to exercise jurisdiction for all purposes and the court’s voluntary dispute

21

resolution program.

22

5. Plaintiff is advised that the U.S. Marshal will require:

23

a. One completed summons;

24

b. One completed USM-285 form for each defendant;

25

c. A copy of the complaint for each defendant, with an extra copy for the U.S.

26

Marshal; and,
3

d. A copy of this court’s scheduling order and related documents for each

1
2
3

defendant.
6. Plaintiff shall supply the United States Marshal, within 14 days from the date this

4

order is filed, all information needed by the Marshal to effect service of process, and shall,

5

within 14 days thereafter, file a statement with the court that said documents have been

6

submitted to the United States Marshal.

7

7. The U.S. Marshal shall serve process, with copies of this court’s scheduling order and

8

related documents, within 90 days of receipt of the required information from plaintiff, without

9

prepayment of costs. The United States Marshal shall, within 14 days thereafter, file a statement

10

with the court that said documents have been served. If the U.S. Marshal is unable, for any

11

reason, to effect service of process on any defendant, the Marshal shall promptly report that fact,

12

and the reasons for it, to the undersigned.

13

8. The Clerk of Court shall serve a copy of this order on the United States Marshal, 501

14

“I” Street, Sacramento, CA 95814 (tel. [phone]).

15

DATED: May 5, 2011.

16
17
18
19
20
21
22
23
24
25
26
4