Van Horn v. The Hana Group, Inc.
ORDER denying 3 PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS AND 4 PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL UNDER THE CIVIL RIGHTS ACT OF 1964: "On the basis of the foregoing, Plaint iff's Application to Proceed in District Court Without Prepaying Fees or Costs and her Request for Appointment of Counsel Under the Civil Rights Act of 1964, both filed April 23, 2012, are HEREBY DENIED. Plaintiff must pay the filing fee by no l ater than June 15, 2012. If Plaintiff fails to do so, this action may be automatically dismissed. IT IS SO ORDERED." Signed by JUDGE LESLIE E. KOBAYASHI on May 3, 2012. (bbb, )CERTIFICATE OF SERVICEParticipa nts registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HELEN E. VANHORN,
US GOVERNMENT CONTRACTED HANA )
GROUP, INC., DBA HANA
CIVIL NO. 12-00215 LEK-KSC
ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT
COURT WITHOUT PREPAYING FEES OR COSTS AND PLAINTIFF’S REQUEST
FOR APPOINTMENT OF COUNSEL UNDER THE CIVIL RIGHTS ACT OF 1964
On April 23, 2012, pro se Plaintiff Helen E. Vanhorn
(“Plaintiff”) filed her Application to Proceed in District Court
Without Prepaying Fees or Costs (“Application”) and her Request
for Appointment of Counsel Under the Civil Rights Act of 1964
The Court finds these matters 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 Hawai`i (“Local Rules”).
consideration of the Application and the Request, and the
relevant legal authority, Plaintiff’s Application and Plaintiff’s
Request are HEREBY DENIED for the reasons set forth below.
Plaintiff’s Employment Discrimination Complaint
(“Complaint”), also filed on April 23, 2012, states that she was
employed as a security officer by Defendant Hana Group, Inc.,
going business as Hana Security Services (“Defendant”).
Plaintiff alleges that Defendant discriminated against her by
terminating her employment and by subjecting her to various acts
of discrimination, including an incident where someone pointed
her unloaded weapon at her face.
Plaintiff alleges that
Defendant discriminated against her based on her race or color,
religion, gender, national origin, and disabilities.
states that the date the alleged discrimination occurred was on
or about December 11, 2010.
[Complaint at ¶¶ 4-7.]
According to the Complaint, Plaintiff filed
administrative charges regarding Defendant’s alleged
discriminatory conduct on or about December 19, 2010.
Attached to the Complaint is the Dismissal and Notice of
Rights (“Notice”) from the United States Equal Employment
Opportunity Commission (“EEOC”), dated March 7, 2012.
that the EEOC closed its file on Plaintiff’s charge because it
adopted the findings of the state fair employment practices
agency that investigated the charge.
It also states that, to the
extent Plaintiff’s claims are based on Title VII, the Americans
with Disabilities Act, the Genetic Information Nondiscrimination
Act, or the Age Discrimination Act, she must file any civil
action based on the charge within ninety days of receiving the
[Id., Exh. A.]
Application to Proceed Without Paying Fees or Costs
This district court has recognized that:
A court may authorize the commencement or
prosecution of any suit without prepayment of fees
by a person who submits an affidavit that the
person is unable to pay such fees. 28 U.S.C. §
1915(a)(1). “[A]n affidavit is sufficient which
states that one cannot because of his poverty pay
or give security for the costs and still be able
to provide himself and dependents with the
necessities of life.” Adkins v. E.I. Du Pont De
Nemours & Co., Inc., 335 U.S. 331, 339 (1948)
(internal quotations omitted). However, a court
may deny leave to proceed in forma pauperis at the
outset and dismiss the complaint if it appears
from the face of the proposed complaint that the
action is frivolous, that the action fails to
state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2);
see Tripati v. First Nat’l Bank & Trust, 821 F.2d
1368, 1370 (9th Cir. 1987); Minetti v. Port of
Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998). A
complaint is frivolous if “it has no arguable
substance of law or fact.” Tripati, 821 F.2d at
1370 (citations omitted)[.] . . . .
Silveria v. JP Morgan Chase Bank, Civil No. 12–00096 ACK–KSC,
2012 WL 828428, at *1 (D. Hawai`i Feb. 17, 2012).1
Plaintiff’s Application states that she is not
employed, but that she receives $1,647.00 per month in disability
or worker’s compensation payments.
[Application at 1.]
This citation refers to the magistrate judge’s Findings
and Recommendation to Deny Application to Proceed in Forma
Pauperis and Dismiss Complaint with Leave to Amend, which the
district judge adopted on March 8, 2012. 2012 WL 830305.
results in an annual income of $19,764.00.
Plaintiff does not
have anyone who is dependent on her for support.
[Id. at 2.]
Plaintiff’s income exceeds the poverty threshold for a single
individual in Hawai`i, which is currently $12,860.00.
Update of the HHS Poverty Guidelines, 77 Fed. Reg. 4034-02
(Jan. 26, 2012).
Further, Plaintiff reports that she has
$17,000.00 in either cash or a checking or savings account, and
she has approximately $12,000 in debts.
Her identified monthly
expenses are approximately $1,200.00 per month.
therefore FINDS that Plaintiff does not qualify as a person who
is unable to pay or give security for court fees.
Application is HEREBY DENIED.
Request for the Appointment of Counsel
Plaintiff requests the appointment of counsel pursuant
to 42 U.S.C. § 2000e-5(f)(1), which states, in pertinent part:
“Upon application by the complainant and in such circumstances as
the court may deem just, the court may appoint an attorney for
such complainant . . . .”
There is, however, no constitutional
right to the appointment of counsel in employment discrimination
Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266,
269 (9th Cir. 1982).
In reviewing Plaintiff’s Request, this
Court must consider her financial resources, her efforts to
secure counsel, and the merits of her claims.
See Bradshaw v.
Zoological Soc’y of San Diego, 662 F.2d 1301, 1318 (9th Cir.
The first factor, Plaintiff’s financial resources,
weighs in favor of the appointment of counsel.
Court has denied Plaintiff’s Application, the Court is satisfied
that Plaintiff does not have sufficient income and assets to
retain private counsel.
The second factor requires this Court to consider
whether Plaintiff made “a reasonably diligent effort under the
circumstances to obtain counsel.”
See id. at 1319.
contacted three attorneys, [Request at 4,] and the Court finds
that this does not constitute a “reasonably diligent effort”.
See, e.g., McCue v. Food Pantry, Ltd., Civ. No. 08-00129 ACK-KSC,
2008 WL 852018, at *2 (D. Hawai`i Mar. 28, 2008) (finding that
contacting only three attorneys was not “reasonably diligent”).
Plaintiff’s efforts to retain counsel therefore weigh against the
of the appointment of counsel.
The third factor requires the Court to consider whether
Plaintiff’s case has “some merit.”
See Bradshaw, 662 F.2d at
This factor weighs against the appointment of counsel
because the Complaint contains no factual allegations supporting
Plaintiff’s claims that Defendant’s actions were discriminatory
based on her race, color, gender, or national origin.2
The Court does note that the Complaint alleges that
Defendant did not honor a request for accommodations because of
as noted above, the appointment of counsel in employment
discrimination cases is discretionary, and there is no
constitutional right to counsel.
This district court does not
maintain a panel of attorneys who are willing to take cases such
In addition, the Court notes that Plaintiff’s
Complaint does not raise complex legal or factual issues, and
Plaintiff appears reasonably capable of representing herself pro
The Court therefore declines to appoint counsel pursuant to
42 U.S.C. § 2000e-5(f)(1).
The Court suggests that Plaintiff
seek the assistance of the Hawaii State Bar Association’s Lawyer
Referral & Information Service.
The referral service can be
reached at 537-9140 or at www.hawaiilawyerreferral.com.
The Court advises Plaintiff that she must represent
herself pro se unless and until she is able to retain counsel and
counsel enters an appearance in this case.
Pro se litigants are
responsible for complying with all of the applicable court rules
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
(“Pro se litigants must follow the same rules of procedure that
govern other litigants.” (citations omitted)).
On the basis of the foregoing, Plaintiff’s Application
to Proceed in District Court Without Prepaying Fees or Costs and
her Request for Appointment of Counsel Under the Civil Rights Act
of 1964, both filed April 23, 2012, are HEREBY DENIED.
Plaintiff must pay the filing fee by no later than
June 15, 2012.
If Plaintiff fails to do so, this action may be
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 3, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
HELEN E. VANHORN V. US GOVERNMENT CONTRACTED HANA GROUP, INC.;
CIVIL NO. 12-00215 LEK-KSC; ORDER DENYING PLAINTIFF’S APPLICATION
TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS AND
PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL UNDER THE CIVIL
RIGHTS ACT OF 1964
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