Loyola v. Potter

Filing 14

ORDER by Judge Hamilton denying 12 Motion to Appoint Counsel, Motion to Appoint Interpreter, and Request for Service by E-mail (pjhlc1, COURT STAFF) (Filed on 4/16/2009) (Additional attachment(s) added on 4/17/2009: # 1 Certificate of Service) (nah, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 EDGARDO LOYOLA, Plaintiff, v. JOHN E. POTTER, Defendant. _______________________________/ No. C 09-0575 PJH ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL AND INTERPRETER, AND REQUEST FOR SERVICE BY E-MAIL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pro se plaintiff Edgardo Loyola filed this action on February 6, 2009, against defendant John E. Potter, alleging discriminatory termination from the United States Postal Service. Plaintiff asserts claims of discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, and discrimination on the basis of age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. 633a. Attached to the complaint is a request, dated February 6, 2009, for appointment of counsel and an interpreter. Plaintiff also filed a request for leave to proceed in forma pauperis ("IFP"). On March 4, 2009, plaintiff filed a consent to proceed before a United States Magistrate Judge. On March 6, 2009, the assigned Magistrate Judge granted the IFP request. On April 2, 2009, plaintiff resubmitted his request for appointment of counsel and an interpreter. On April 3, 2009, defendant filed a declination to proceed before a Magistrate Judge, and a request for reassignment to a United States District Judge. On April 7, 2009, the case was reassigned to the undersigned. On April 10, 2009, plaintiff filed a request for assignment of the case to a Magistrate Judge. Plaintiff also resubmitted his request for appointment of counsel and an interpreter, 1 2 3 4 5 6 7 8 9 10 and a request that he be served by e-mail rather than by ordinary first-class mail. In addition, plaintiff filed what appears to be a request for a stay of the case pending appointment of counsel and an interpreter. 1. Request for Assignment to a Magistrate Judge A United States Magistrate Judge "may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or district he serves." 28 U.S.C. 636(c)(1). However, assignment of a civil case to a Magistrate Judge is dependent "[u]pon the consent of the parties." Id. Here, while plaintiff has consented to have a Magistrate Judge conduct all proceedings, the defendant has declined to consent. Accordingly, plaintiff's request for assignment of the case to a Magistrate Judge is DENIED. 2. Motion for Appointment of Counsel United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff seeks appointment of counsel to represent her in this action. Because plaintiff is not an indigent litigant who may lose his physical liberty if he loses the litigation, there is no right to counsel in this case. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). More pertinent to the present action, there is no constitutional right to appointed counsel for employment discrimination claims, Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982), nor are funds available in this court (or any federal court) to compensate counsel appointed in civil cases. The 1964 Civil Rights Act provides for appointment of counsel in employment discrimination cases "in such circumstances as the court may deem just." Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1318 ( 9th Cir. 1981); see 42 U.S.C. 2000e-5(f)(1). In this district, if the court finds that the plaintiff meets certain criteria, the court may refer the case to the Federal Pro Bono Project, which will attempt to locate an a volunteer attorney to represent the plaintiff. The Federal Pro Bono Project was established by the San Francisco Bar Association for the purpose of assisting indigent Title VII plaintiffs or indigent incarcerated civil rights plaintiffs to secure legal representation. Under Bradshaw, the court is required to assess three factors: 1) the plaintiff's 2 1 2 3 4 5 6 7 8 9 10 financial resources, 2) the efforts made by the plaintiff to secure counsel, and 3) whether the plaintiff's claim has merit. Bradshaw, 662 F.2d at 1318. Here, the court has granted plaintiff's request to proceed IFP. Thus, plaintiff meets the first factor. However, plaintiff has not satisfied the second or third factors. With regard to the second factor the efforts made to secure counsel plaintiff does not identify, by name, a single attorney that he contacted in an attempt to secure representation. Plaintiff has made no showing that he made any effort to obtain counsel on his own. With regard to the third factor whether the complaint has merit plaintiff has also made no showing whatsoever. In Bradshaw, the Ninth Circuit noted that if the EEOC "has found `reasonable cause,' . . . the claim should ordinarily be deemed meritorious." Id. at 1309. Here, the EEOC issued a Notice of Final Action (and right-to-sue letter) on December 26, 2007. The Notice of Final Action, which is signed by the Manager of EEO Services for the Postal Service, states that an EEOC Administrative Judge issued a decision that was received by the Postal Service on November 3, 2008, and that the record does not show that plaintiff was the victim of illegal discrimination. A copy of the EEOC decision is attached to the Notice of Final Action. Because the EEOC found that plaintiff's claim was not meritorious, and granted summary judgment for the Postal Service, there is no basis upon which the court can find that plaintiff's claims of discrimination are meritorious. Further, plaintiff presented no argument in his request for appointment of counsel which could be viewed as supporting his claim of discrimination by the Postal Service. Accordingly, the court finds that at this stage of the litigation, the request for appointment of counsel must be DENIED.1 The request for a stay is also DENIED. 3. Request for Appointment of an Interpreter United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court finds further that plaintiff does not meet the "exceptional circumstances" required for appointment of counsel pursuant to 28 U.S.C. 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 3 1 1 2 3 4 5 6 7 8 9 10 The court is not authorized to appoint interpreters for litigants in civil cases, and, moreover, has no funds to pay for such a program. Accordingly, the request for appointment of an interpreter is DENIED. 4. Request for Service by E-mail. Plaintiff requests that he be served by e-mail. The court is unable to arrange service by e-mail in this case, because plaintiff is not a registered e-filer. Ordinarily, only attorneys are permitted to register as e-filers. Accordingly, the request is DENIED. IT IS SO ORDERED. Dated: April 16, 2009 ______________________________ PHYLLIS J. HAMILTON United States District Judge United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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