Cepeda v. United States Postal Service et al

Filing 6

ORDER: IT IS HEREBY ORDERED that plaintiff is granted leave to file the complaint without prepayment of the filing fee or security therefor; and IT IS FURTHER ORDERED that plaintiff's application for the appointment of pro bono counsel is denied ; and IT IS FURTHER ORDERED that the Clerk of Court must forward to the United States Marshal Service for the Eastern District of New York copies of plaintiff's summons, complaint and this Order for service upon defendant USPS without prepayment of fees; and the Clerk of Court must mail a copy of this Order to the plaintiff. Ordered by Judge Joan M. Azrack on 1/23/2018. (CM to pro se plaintiff) (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RUFINA CEPEDA,

For Online Publication Only

Plaintiff,
ORDER
18-CV-00174 (JMA) (GRB)

-againstUNITED STATES POSTAL SERVICE, PO WONG,
JAY WU,
Defendants.
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JOAN M. AZRACK, District Judge:

FILED 
CLERK 

1/23/2018 4:35 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

On January 10, 2018, pro se plaintiff Rufina Cepeda filed a complaint on the Court’s
employment discrimination complaint form against the United States Postal Service (“USPS”), Po
Wong (“Wong”), and Jay Wu (“Wu”) (collectively, “Defendants”) pursuant to Title VII of the
Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e-2000e-17 (“Title VII”), the Americans
with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112-12117 (“ADA”), and Section 504
of the Rehabilitation Act, 29 U.S.C. § 794. Accompanying the complaint is an application to
proceed in forma pauperis and an application for the appointment of pro bono counsel to represent
plaintiff in this case. (See ECF Nos. 2-3.)
Upon review of the plaintiff’s application to proceed in forma pauperis and its
accompanying declaration, the Court finds that plaintiff is qualified to commence this action
without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1). Accordingly, plaintiff’s
request to proceed in forma pauperis is granted. However, because none of the statutes upon
which plaintiff bases her claims provide for individual liability, plaintiff’s claims against Wong
and Wu are hereby dismissed for failure to state a claim upon which relief may be granted pursuant
to 28 U.S.C. § 1915(e)(2)(B). See Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014) (Title
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VII); Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010) (ADA); Garcia v. S.U.N.Y. Health
Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (ADA and Rehabilitation Act); see also
Cohn v. KeySpan Corp., 713 F. Supp. 2d 143, 154 (E.D.N.Y. 2010) (“Individuals may not be sued
in their individual or personal capacity under the ADA or Rehabilitation Act.”).
Pursuant to 28 U.S.C. §1915(e)(1), courts may appoint an attorney to represent someone
who is unable to afford counsel. Courts possess broad discretion when determining whether
appointment is appropriate, “subject to the requirement that it be ‘guided by sound legal
principle.’” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 171-72 (2d Cir. 1989) (quoting Jenkins
v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The Second Circuit set forth the principle
as follows:
[T]he district judge should first determine whether the indigent’s position seems
likely to be of substance. If the claim meets this threshold requirement, the court
should then consider the indigent’s ability to investigate the crucial facts, whether
conflicting evidence implicating the need for cross-examination will be the major
proof presented to the fact finder, the indigent’s ability to present the case, the
complexity of the legal issues and any special reason in that case why appointment
of counsel would be more likely to lead to a just determination.
Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). The Second Circuit also held that
these factors are not restrictive, and that “[e]ach case must be decided on its own facts.” Id. at
61. A developed record assists the court in this regard. See Brooks v. State of New York, 92-CV1508, 1992 WL 320402, at *3 (S.D.N.Y. Oct. 29, 1992) (denying, without prejudice, appointment
of counsel based on failure to satisfy requisite showing of likely merit).
The Court has reviewed plaintiff’s application together with the complaint and finds that
the appointment of counsel is not warranted at this stage of the litigation. Even assuming that the
threshold requirement of Hodge is satisfied, the Court is unable, at this juncture, to conclude—

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after considering the Hodge factors in the context of plaintiff’s application and complaint—that
the appointment of counsel is warranted. Specifically, despite the concerns raised in plaintiff’s
motion, the Court concludes that plaintiff is able at this stage of the litigation to prosecute her case
and that there is no special reason to appoint counsel.
Accordingly, plaintiff’s application for appointment of counsel is denied without prejudice
to plaintiff renewing the application at the conclusion of discovery, if circumstances warrant such
an application. This denial also is without prejudice to plaintiff=s hiring her own counsel to
represent her in this matter.
IT IS HEREBY ORDERED that plaintiff is granted leave to file the complaint without
prepayment of the filing fee or security therefor; and
IT IS FURTHER ORDERED that plaintiff’s application for the appointment of pro bono
counsel is denied; and
IT IS FURTHER ORDERED that the Clerk of Court must forward to the United States
Marshal Service for the Eastern District of New York copies of plaintiff’s summons, complaint
and this Order for service upon defendant USPS without prepayment of fees; and the Clerk of
Court must mail a copy of this Order to the plaintiff.
SO ORDERED.
Dated:

January 23, 2018
Central Islip, New York

/s/(JMA)
Joan M. Azrack
United States District Judge

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