St. Classis Brown v. DCK Worldwide LLC

Filing 10

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 re 3 Motion to Appoint Counsel ; re 2 Motion for Leave to Proceed in forma pauperis. Signed by JUDGE LESLIE E. KOBAYASHI on 01/13/2015. Plaintiff's Application to Proceed Without Prepaying Fees or Costs and his Request for Appointment of Counsel Und er the Civil Rights Act of 1964, both filed December 12, 2014, are HEREBY DENIED.Plaintiff must pay the filing fee by no later than February 27, 2015. If Plaintiff fails to do so, this action may be automatically dismissed. (eps )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
CLINTON C. ST. CLASSIS BROWN, )
II,
)
)
Plaintiff,
)
)
vs.
)
)
DCK WORLDWIDE LLC,
)
)
Defendant.
)
_____________________________

CIVIL 14-00559 LEK-BMK

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 December 12, 2014, pro se plaintiff Clinton C. St.
Classis Brown, II (“Plaintiff”) filed his Application to Proceed
Without Prepaying Fees or Costs (“Application”) and his Request
for Appointment of Counsel Under the Civil Rights Act of 1964
(“Request”).

[Dkt. nos. 2, 3.]

The Court finds these matters

suitable for disposition without a hearing pursuant to Rule
LR7.2(e) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Application and the Request,
and the relevant legal authority, Plaintiff’s Application and
Request are HEREBY DENIED for the reasons set forth below.

BACKGROUND
Plaintiff filed his charges of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) on January 20,
2014, and the EEOC issued its Dismissal and Notice of Rights
(“Right to Sue Letter”) on September 30, 2014.

The Right to Sue

Letter stated that Plaintiff could file a lawsuit against the
respondent within ninety days of receipt of the letter.

[Dkt.

no. 1-3 (Right to Sue Letter) at 1.]
Plaintiff timely filed his Employment Discrimination
Complaint (“Complaint”) against DCK Worldwide LLC (“Defendant”)
on December 12, 2014.

The Complaint alleges discrimination based

on race or color, and national origin.
at 3.]

[Dkt. no. 1 (Complaint)

Plaintiff alleges that the discrimination occurred on or

about February 19, 2013 and March 30, 2013.

[Id. at 4.]

He

alleges that, inter alia, he was: (1) called racial epithets on
two occasions by coworkers; (2) treated differently from his
coworkers and made to work unreasonable hours; (3) subjected to a
hostile work environment, public ridicule and humiliation by his
supervisor; (4) terminated from two different jobs for whistleblowing and “slander,” and not offered Consolidated Omnibus
Budget Reconciliation Act (“COBRA”) benefits after termination;
and (5) refused employment by Defendant’s competitors because of
negative references.

[Id. at 3.]

Plaintiff also attaches a

document that describes more fully the basis for the Complaint
2

(“Statement”), and a signed Letter of Compromise addressed to
Defendant (“the Letter”).1

[Dkt. nos. 1-1, 1-2.]
DISCUSSION

I.

Leave to Proceed In Forma Pauperis
Plaintiff seeks leave to proceed in forma pauperis,

i.e., without the prepayment of fees and 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); Neitzke v. Williams, 490
U.S. 319, 325 (1989). The term frivolous
“embraces not only the inarguable legal
conclusion, but also the fanciful factual
allegation.” Neitzke, 490 U.S. at 325.

1

The Letter appears to be a draft, and there is no evidence
that it was either sent to, or received by, Defendant.
3

Waterhouse v. Cufi Church Ass’n, Civil No. 14-00144 ACK-KSC, 2014
WL 1415025, at *1 (D. Hawai`i Mar. 25, 2014) (alteration in
Waterhouse).2

Between the Complaint, Statement, and Right to Sue

Letter, Plaintiff appears to state a non-frivolous claim.
However, Plaintiff is not entitled to the relief requested in his
Application.
Plaintiff’s Application shows that he is not employed,
but that he receives $337.00 per week in unemployment insurance.
[Application at 1.]
$17,524.00.

This results in an annual income of

Plaintiff does not have anyone who is dependent on

him for support, and he does not have any debts or financial
obligations.

[Id. at 2.]

Although he reports that he has no

cash or savings, and that his monthly expenses for rent, food,
and utilities are over $875.00 per month [id.,] Plaintiff’s
income exceeds the poverty threshold for a single individual in
Hawai`i, which is currently $13,420.00.

See Annual Update of the

HHS Poverty Guidelines, 79 Fed. Reg. 3593-01 (Jan. 22, 2014).
This Court therefore FINDS that Plaintiff does not qualify as a
person who is unable to pay or give security for court fees.
Plaintiff’s Application is HEREBY DENIED.

2

This citation refers to the magistrate judge’s findings
and recommendation, which the district judge adopted on April 11,
2014. 2014 WL 1415327.
4

II.

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
cases.

See, e.g., Hayes v. Mabus, Civil No. 14-00158 DKW-RLP,

2014 WL 1660619, at *2 (D. Hawai`i Apr. 25, 2014) (citing Ivey v.
Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir.
1982)).3

In reviewing Plaintiff’s Request, this Court must

consider his financial resources, his efforts to secure counsel,
and the merits of his claims.

See, e.g., Williams v. 24 Hour

Fitness USA, Inc., No. CIV.14-00560 BMK-NONE, 2014 WL 7404604, at
*2 (D. Hawai`i Dec. 30, 2014) (citing Bradshaw v. Zoological
Soc’y of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981)).
The first factor, Plaintiff’s financial resources,
weighs slightly for appointment of counsel.

Although this Court

has denied Plaintiff leave to proceed in forma pauperis,
Plaintiff has limited resources and may not have sufficient
income and assets to retain private counsel.

3

The citation to Hayes refers to the magistrate judge’s
findings and recommendation, which the district judge adopted.
2014 WL 1660619, at *2.
5

The second factor requires this Court to consider
whether Plaintiff made “a reasonably diligent effort under the
circumstances to obtain counsel.”
1319.

See Bradshaw, 662 F.2d at

It appears from the Request that Plaintiff contacted three

attorneys, [Request at 4,] and the Court finds that this does not
constitute a “reasonably diligent effort.”

See, e.g., Vanhorn v.

US Gov’t Contracted Hana Grp., Inc., Civil No. 12-00215 LEK-KSC,
2012 WL 1571509, at *2 (D. Hawai`i May 3, 2012) (citation
omitted) (finding that contacting only three attorneys was not
“reasonably diligent”).

Plaintiff’s efforts to retain counsel

therefore weigh against the appointment of counsel.
The third factor requires the Court to consider whether
Plaintiff’s case has “some merit.”
1319.

See Bradshaw, 662 F.2d at

This factor also weighs against the appointment of

counsel.

As noted above, the appointment of counsel in

employment discrimination cases is discretionary, and there is no
constitutional right to counsel.

See Ivey, 673 F.2d at 269.

The

district court does not maintain a panel of attorneys who are
willing to take cases such as Plaintiff’s.

In addition, the

Court notes that Plaintiff’s Complaint does not raise complex
legal or factual issues and Plaintiff appears reasonably capable
of representing himself pro se.

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
6

Bar Association’s Hawaii Lawyer Referral & Information Service.
The referral service can be reached at [phone] or at
www.hawaiilawyerreferral.com.
Since the factors weigh against the appointment of
counsel, the Court advises Plaintiff that he must represent
himself pro se unless and until he 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
and deadlines.

See, e.g., Solis v. McKessen, 465 F. App’x 709,

710 (9th Cir. 2012) (“Pro se litigants must follow the same rules
of procedure that govern other litigants.” (quoting King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)).
CONCLUSION
On the basis of the foregoing, Plaintiff’s Application
to Proceed Without Prepaying Fees or Costs and his Request for
Appointment of Counsel Under the Civil Rights Act of 1964, both
filed December 12, 2014, are HEREBY DENIED.
Plaintiff must pay the filing fee by no later than
February 27, 2015.

If Plaintiff fails to do so, this action may

be automatically dismissed.
IT IS SO ORDERED.

7

DATED AT HONOLULU, HAWAII, January 13, 2015.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CLINTON C. ST. BROWN, II VS. DCK WORLDWIDE LLC; CIVIL 14-00559
LEK-BMK; 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

8