Hicks et al v. Makaha Valley Plantation Homeowners Assn. et al
Filing
47
ORDER DENYING PLAINTIFFS' 45 MOTION FOR APPOINTMENT OF COUNSEL. Signed by MAGISTRATE JUDGE BARRY M. KURREN on 4/9/2015. (ecs, )CERTIFICATE OF SERVICEParticipants 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
CIV. NO. 14-00254 HG-BMK
CHARLES A. HICKS; DENEEN
HICKS; STACEY HICKS,
)
)
)
)
Plaintiffs,
)
)
vs.
)
MAKAHA VALLEY PLANTATION )
)
HOMEOWNERS ASSOCIATION;
)
HAWAII FIRST, INC.,
)
)
Defendants.
______________________________ )
ORDER DENYING PLAINTIFFS’
MOTION FOR APPOINTMENT OF
COUNSEL
ORDER DENYING PLAINTIFFS’
MOTION FOR APPOINTMENT OF COUNSEL
Before the Court is Charles A. Hicks, Deneen Hicks, and Stacey
Hicks’ (collectively “Plaintiffs”) Motion for Appointment of Counsel, filed on
March 27, 2015. (Doc. 45.) The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR 7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawaii. After careful consideration
of the Motion and the relevant legal authority, Plaintiffs’ Motion is DENIED for
the reasons set forth below.
BACKGROUND
On June 28, 2012, while living in California, Plaintiffs filed a
complaint against Defendants Makaha Valley Plantation Homeowners Association
1
and Hawaii First, Inc. (“Defendants”), alleging housing discrimination under Title
VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. § 3601 et seq.,
commonly known as the Fair Housing Act of 1968 (“Fair Housing Act”), with the
U.S. Department of Housing and Urban Development (“HUD”) and the Hawai‘i
Civil Rights Commission (“HCRC”). (Doc. 24-5, 24-6.) Plaintiffs alleged
“[d]iscriminatory terms, conditions, privileges, or services and facilities,” and
“[f]ailure to make reasonable accommodation,” stemming from:
(1) Defendants’ failure to make satisfactory repairs to the interior of
Plaintiffs’ condominium unit caused by water leaks from the unit above
them, and Defendants’ failure to provide Plaintiffs with contact
information for the homeowner of the unit above them, which resulted in
Plaintiffs having to secure repairs to their unit for which they were not
responsible for and having to secure a high-risk insurance policy for their
unit;
(2) Defendants’ refusal to trim the landscaping that interfered with Plaintiffs’
ability to enter and exit their car when parked in their assigned parking
space;
(3) Defendants’ differential enforcement of the parking rules between
Plaintiffs and other “non-Black residents”;
(4) Defendants’ refusal to provide Plaintiffs with identification information
of a homeowner whose tenant made “unprovoked, racially-derogatory
remarks and physically threatened Charles Hicks”; and
(5) Defendants’ failure to make reasonable accommodation to Charles Hicks
whose disability makes him particularly sensitive to noise disturbances.
(Doc. 24-5.) Plaintiffs maintained that they were discriminated against based upon
their race, color, and Charles Hicks’ disability. (Doc. 24-6.) On February 12,
2
2013, Defendants filed a response to Plaintiffs’ HUD and HCRC complaint, which
denied all of Plaintiffs’ allegations of discrimination and disparate treatment, and
argued that Plaintiffs filed their complaint in retaliation for Defendants’ attempt to
collect past and currently due maintenance fees, fines for prohibited conduct, and
related late fees. (Doc. 24-7.) On February 24, 2014, the HCRC dismissed
Plaintiffs’ discrimination complaint on the basis of “no cause.” (Doc. 24-8.)
On May 29, 2014, Plaintiffs, appearing pro se, filed the Complaint in
this Court alleging housing discrimination on the basis of race while they were
residing at the Makaha Valley Plantation (“MVP”) condominium project in
Hawaii. (Docs. 1, 24.) Sometime before filing their Complaint in this Court,
Plaintiffs became residents of Lithia Springs, Georgia. (Doc. 1.) In their
Complaint, Plaintiffs articulate the same allegations raised in their HCRC and
HUD complaint, and allege, inter alia, that Defendants failed to make satisfactory
repairs to the interior of their unit after water leaked from the unit above them, and
Defendants failed to provide Plaintiffs with contact information of other
homeowners within the MVP condominium project. (Doc. 1.) Plaintiffs further
allege that Defendants’ acts and omissions caused them to be “homeless and
penniless.” (Doc. 1.) Plaintiffs seek $500,000 in actual damages and $2.5 million
in punitive damages. (Doc. 1.)
On August 28, 2014, Plaintiffs filed a “Request to Transfer Case,”
3
which this Court construed as a Motion for Transfer of Venue. (See Doc. 19.)
Plaintiffs sought to transfer this action from this Court to the United States District
Court for the Northern District of Georgia. (Doc. 15.) On October 20, 2014, this
Court issued its Findings and Recommendation, finding that the District of Hawaii
is the proper venue for this case and that the balance of factors regarding
convenience and justice weigh in favor of upholding Plaintiffs’ original forum
choice of the District of Hawaii. (Doc. 25 at 13.) On November 24, 2014, United
States District Judge Helen Gillmor adopted this Court’s Findings and
Recommendation, and denied Plaintiffs’ Motion to Transfer Venue. (Doc. 27.)
On November 28, 2014, Defendants filed a Motion to Dismiss
Plaintiffs’ Complaint, requesting that the Court dismiss all of Plaintiffs’ claims
with prejudice. (Doc. 28.) Defendants argued that the Complaint is “defective,
conclusory, and riddled with defects[,]” and that “[n]o cognizable claims are stated
or identified, adequately or otherwise.” (Doc. 28-1 at 1.) On January 26, 2015, the
Court granted Defendants’ Motion to Dismiss for failure to state a claim, but
granted Plaintiffs leave to amend their complaint (hereinafter, “Dismissal Order”).
(Doc. 38 at 2.) Plaintiffs were given leave to amend their complaint in order to add
sufficient allegations to state a claim for Violation of the Fair Housing Act and the
Hawaii Discrimination in Real Property Transactions Act based on (1) race
discrimination, and (2) disability discrimination for failure to provide a reasonable
4
accommodation. (Doc. 38 at 22-23.) The Court’s Dismissal Order clearly
articulates the elements that Plaintiffs must establish in order to prove their claims,
and further instructs Plaintiffs as to the facts they must allege in their amended
complaint in order to sufficiently state a claim for which relief can be granted.
(See Doc. 38 at 13-22.) In its Dismissal Order, the Court cautioned Plaintiffs that
the failure to file an amended complaint consistent with the rulings contained in the
order “will result in dismissal of the entire matter.” (Doc. 38 at 23.)
On March 9, 2015, Plaintiffs filed an Amended Complaint. (Doc. 40.)
On March 20, 2015, Defendants filed a Motion to Dismiss the Amended
Complaint. (Doc. 42.) In support of its Motion to Dismiss the Amended
Complaint, Defendants argue that Plaintiffs failed to comply with the rulings
contained in the Court’s Dismissal Order, including Plaintiffs’ failure to cure the
lack of specificity as to Defendants’ actions and Plaintiffs’ failure to cure defects
with respect to their race and disability discrimination claims. (Doc. 42-1 at 2033.) A hearing on Defendants’ Motion to Dismiss the Amended Complaint is
currently scheduled for June 15, 2015 before Judge Helen Gillmor. (Doc. 43.)
On March 27, 2015, Plaintiffs filed a Motion for Appointment of
Counsel, which is currently before this Court. (Doc. 45.) Plaintiffs maintain they
are not financially able to afford an attorney, and that they do not have the
education that is needed to meaningfully prosecute this case. (Doc. 45 at 2.)
5
Accordingly, Plaintiffs request that the Court appoint them legal counsel. (Doc.
45.)
DISCUSSION
A district court may, under the discretionary authority conferred upon
it under 28 U.S.C. § 1915(e)(1), designate counsel to represent an indigent civil
litigant.1 There is no absolute right to counsel in civil proceedings, Hedges v.
Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994), and counsel may be
designated under section 1915 only in “exceptional circumstances.” See Wilborn
v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). A finding of exceptional
circumstances requires an evaluation of both “the likelihood of success on the
merits [and] the ability of the petitioner to articulate his claims pro se in light of the
complexity of the legal issues involved.” Id. (citing Weygandt v. Look, 718 F.2d
952, 954 (9th Cir.1983)). Neither of these factors is dispositive and both must be
viewed together before reaching a decision on request of counsel under section
1915. Wilborn, 789 F.2d at 1331.
The Fair Housing Act provides, in relevant part, that upon application
by a person alleging a discriminatory housing practice, the court may appoint an
attorney for such person. 42 U.S.C. § 3613(b)(1). Although little case law exists
on the appointment of an attorney by a court under 42 U.S.C. § 3613(b), the Court
1
28 U.S.C. § 1915(e)(1) provides that “[t]he court may request an attorney to represent any person unable to afford
counsel.”
6
finds case law on the appointment of an attorney under 42 U.S.C. § 2000e–5 to be
instructive on applying the provisions of 42 U.S.C. § 3613(b), given the similar
nature of the underlying legal actions and the statutory language permitting the
appointment of an attorney under these statutes. See Gamble v. City of Escondido,
104 F.3d 300, 304 (9th Cir. 1997) (finding that most courts applying the Fair
Housing Act have analogized it to Title VII of the civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., which prohibits discrimination in employment); Pfaff v.
U.S. Dep’t of Hous. & Urban Dev., 88 F.3d 739, 745 n.1 (9th Cir. 1996) (noting
that in a Fair House Act case the court “may look for guidance to employment
discrimination cases.”); Huntington Branch, NAACP v. Town of Huntington, 844
F.2d 926, 934-35 (2d Cir. 1988), aff’d, 488 U.S. 15 (1988) (Title VII analysis is
persuasive in interpreting Title VIII).
Similar to the mandates of the Fair Housing Act, 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’y of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981) (internal quotation marks
omitted). Three factors have emerged as relevant to the exercise of the district
court’s discretion under this broad statutory mandate:
The court is required to assess: (1) the plaintiff’s financial resources,
(2) the efforts made by the plaintiff to secure counsel, and (3) whether
the plaintiff’s claim has merit.
7
Id. (citations omitted). The plaintiff has the burden of persuasion as to all three
factors, and an unfavorable finding as to any one factor is fatal to his request.
Miljkovic v. Univ. of Hawaii, Civ. No. 09-00064 ACK-KSC, 2010 WL 346450, at
*1 (D. Haw. Jan. 27, 2010).
1. Plaintiffs’ Financial Resources
As to the first factor, Plaintiffs’ assert they “are not financially able to
afford the cost to bring forward this case with a private attorney.” (Doc. 45 at 2.)
Plaintiffs’ Motion indicates that Plaintiff Stacey Hicks is a college student;
Plaintiff Charles Hicks is a disabled veteran and a retired roofer and roofing
inspector; and Plaintiff Deneen Hicks is a primary caregiver of her mother and of
Charles Hicks, and is also a college student. (Doc. 45-1 at 2.) Apart from
Plaintiffs’ statement that “[a]ll three plaintiffs are currently living off the disability
payments that CHARLES HICKS gets from the Dept. of Veteran Affairs and
Social Security Administration,” Plaintiffs’ Motion for Appointment of Counsel is
devoid of any information as to their financial resources. (Doc. 45-1 at 2; see
generally Docs. 45, 45-1.) A review of Plaintiffs’ Application to Proceed in
District Court without Prepaying Fees or Costs (“IFP Application”), filed May 29,
2014 (Doc. 3) and subsequently granted by the Court on June 4, 2014 (Doc. 6),
indicates that Plaintiffs’ sole source of income appears to be from gifts in the
amount of $100.00 per month. Plaintiffs’ IFP Application fails to mention any
8
disability payments received, nor does it indicate the amount and frequency of such
payments. Without this information, the Court is unable to determine whether
Plaintiffs have the financial resources to afford an attorney. Thus, based on the
information provided by Plaintiffs, the Court is unable to determine whether
Plaintiffs have sufficient income and assets to retain private counsel. Therefore,
the Court finds that the financial resources factor weighs against the appointment
of counsel.
2. Plaintiffs’ Efforts to Obtain Counsel
The second factor requires Plaintiff to “make what can be considered
a reasonably diligent effort under the circumstances to obtain counsel.” Bradshaw,
662 F.2d at 1319. In Bradshaw, the plaintiff met this threshold by contacting more
than ten attorneys, each of whom declined to represent her except upon financial
terms that she was unable to meet. Id.
Here, Plaintiffs state that they “have repeatedly tried to get help” and
legal advice “from other sources,” but they have been unable to find an attorney in
their hometown of Georgia willing to handle a case in the District of Hawaii, and
they are unable to find an attorney in Hawaii willing to represent them on terms
they can afford. (Doc. 45-1 at 2.) Apart from these general assertions, Plaintiffs
do not specify how many attorneys were contacted, why Plaintiffs were unable to
meet the terms of representation offered by the attorneys contacted and/or the
9
reason representation was declined, or why private representation is otherwise not
possible. The only instance in which an explanation is given is Plaintiffs’
statement that Legal Aid “was [the] only one who even considered taking the
case,” and they would not be able to do so without a $5,000 retainer, which
Plaintiffs maintain they “do not have.” (Id.)
While the Court notes that Plaintiffs have made some effort to retain
counsel, greater efforts could clearly be made. Contingent fee arrangements are
often appropriate when a plaintiff is able to demonstrate the existence of a valid
claim, so it may be that Plaintiffs must focus on establishing for counsel why their
claims are colorable. See Gregory v. Hilton Resorts Corp., Civ. No. 08-00476
SOM-BMK, 2008 WL 4755672, at *1 (D. Haw. Oct. 23, 2008) (encouraging
complainant to make further efforts to secure counsel and provide counsel with
details supporting his claims). Moreover, based upon Plaintiffs’ representations, it
appears that Plaintiffs have not attempted to take advantage of free legal services
such as those provided by Volunteer Legal Services Hawaii. On the present
record, the Court finds that Plaintiffs have not made a reasonably diligent effort to
obtain counsel. See e.g., Turner v. Dep’t of Educ., Civ. No. 10-00707 ACK-BMK,
2010 WL 6571413, at *2 (D. Haw. Dec. 13, 2010) (holding that contacting seven
attorneys and Volunteer Legal Services Hawaii was not “a reasonably diligent
effort under the circumstances to obtain counsel”). Accordingly, the Court finds
10
that this factor militates against appointing counsel.
3. The Merits of Plaintiffs’ Claim
As to the third and final Bradshaw factor, Plaintiffs must show that
their claims have “some merit.” Bradshaw, 662 F.2d at 1319. In the case of
motions for appointment of counsel, in order to determine whether a plaintiff’s
claim has merit, a court need normally look only to a determination by an
administrative agency, and for practical purposes, that agency’s determination is
ordinarily conclusive. Id. at 1309. If the agency has found “reasonable cause,” the
claim should normally be deemed meritorious for purposes of appointment of
counsel. Id. On the other hand,
The district court may, perhaps even should, inquire of plaintiff as to
the validity of the no reasonable cause determination and why plaintiff
considers the determination to be in error. Surely, the determination
of the administrative agency created to enforce the civil rights laws is
not to be ignored. In this regard, a finding that the [administrative
agency] determination is supported by substantial evidence in the
investigative file and that plaintiff’s objections thereto are patently
frivolous would weigh heavily in the scales against appointing an
attorney.
Id. at 1309 n.20 (citing Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th
Cir. 1977)).
Here, on February 24, 2014, the HCRC dismissed Plaintiffs’
discrimination complaint on the basis of “no cause.” (Doc. 24-8 at 1.) The HCRC
determined that upon investigation, Plaintiffs’ allegations of discrimination could
11
not be confirmed to the standard of proof level required by the statute for the
Commission to further pursue the case. (Id.) Plaintiffs’ Amended Complaint does
not indicate why Plaintiffs consider the HCRC determination to be in error, and
Plaintiffs’ Motion for Appointment of Counsel merely states that “[P]laintiffs
allege and would like the opportunity to show, how the whole investigation and
handling of the case by the [HCRC] was completely flawed and biased against the
[P]laintiffs.” (See Doc. 40; Doc. 45-1 at 3.) Thus, absent any specifically
supported objection to the HCRC “no cause” determination, the Court is unable to
determine whether Plaintiffs’ objections thereto are patently frivolous. Moreover,
upon review of Plaintiffs’ Amended Complaint, the Court is unable to find any
factual allegations supporting Plaintiffs’ claims that Defendants’ actions were
discriminatory under the Fair Housing Act, and thus, Plaintiffs have not
demonstrated that their race and disability discrimination claims have merit. Thus,
on the record before this Court, the Court finds that the third Bradshaw factor also
weighs against the appointment of counsel.
CONCLUSION
On balance, the Court finds that the Bradshaw factors weigh against
the appointment of counsel in this case. As stated above, the appointment of
counsel in civil cases is discretionary and there is no constitutional right to counsel.
Further, Plaintiffs should note that in most cases, the Court cannot expend public
12
resources to provide plaintiffs with counsel. See McCue v. Food Pantry, Ltd., Civ.
No. 08–00129 ACK–KSC, 2008 WL 852018, at *3 (D. Haw. Mar. 28, 2008).
Accordingly, because “exceptional circumstances” do not exist here, Plaintiffs’
Motion for Appointment of Counsel is DENIED.
The Court advises Plaintiffs that they must represent themselves pro
se unless and until they are able to retain counsel and counsel enters an appearance
in this case. “[A] pro se litigant is not excused from knowing the most basic
pleading requirements.” Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227
F.3d 1104, 1107-08 (9th Cir. 2000). Moreover, a pro se litigant is responsible for
complying with all of the applicable court rules and deadlines. Motoyama v.
Hawaii, Dep’t of Transp., 864 F. Supp. 2d 965, 976 (D. Haw. 2012) (“[P]ro se
litigants must follow the same rules of procedure that govern other litigants.”
(citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987))).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 9, 2015.
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Charles Hicks, et al. v. Makaha Valley Plantation Homeowners Association, et al., CIV. NO. 1400254 HG-BMK; ORDER DENYING PLAINTIFFS’ MOTION FOR APPOINTMENT OF
COUNSEL.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?