Courtney v. Housing Authority of the County of Kings ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 COLLEEN M. COURTNEY, Case No. 1:20-cv-01296-NONE-SKO 10 Plaintiff, ORDER ON PLAINTIFF’S MOTION 11 v. (Doc. 13) 12 21-DAY DEADLINE 13 HOUSING AUTHORITY OF THE COUNTY 14 OF KINGS, et al., Defendants. 15 16 17 18 On September 11, 2020, Plaintiff Colleen M. Courtney (“Plaintiff”), proceeding pro se and 19 in forma pauperis, filed an action alleging unlawful housing discrimination against the Housing 20 Authority of Kings County (erroneously named as “Housing Authority of the County of Kings”), 21 the Kings County Board of Supervisors (erroneously named as “Board of Supervisors of the County 22 of Kings”), and the California Department of Fair Employment and Housing. (Doc. 1.) 23 On January 19, 2021, the undersigned issued a screening order finding that Plaintiff failed 24 to state a claim upon which relief may be granted and granted Plaintiff twenty-one days leave to file 25 an amended complaint curing the pleading deficiencies identified in the order. (Doc. 4.) Plaintiff 26 was subsequently granted three extensions of time, to August 18, 2021, to file an amended 27 complaint. (See Docs. 6, 8, 10.) 28 1 On August 16, 2021, instead of filing an amended complaint, Plaintiff filed a “Response to 2 First Screening Order” (the “Response”). (Doc. 11.) In the Response, Plaintiff re-attached her 3 initial complaint, stated that she “feels[] that [the screening standard] ha[s] already been met within 4 the instructions provided by the Previous filed Prose [sic] Form,” and requested that the Court 5 “reconsider” the initial complaint. (See id.) 6 On August 17, 2021, the Court issued an order to show cause, within twenty-one days of the 7 date of service of this order, why a recommendation should not issue for this action to be 8 dismissed for Plaintiff’s failure comply with the Court’s screening order by not filing an 9 amended complaint (the “OSC”). (Doc. 12.) 10 On September 7, 2021, Plaintiff filed a response to the OSC, stating that she “STILL 11 STANDS ON. [sic] the ORIDGINAL [sic] PROSE FORM” and that the initial complaint 12 “CONFORMS TO THE SCREENING STANDARDS[.]” (Doc. 13 at 10.) Plaintiff also requested 13 appointment of counsel pursuant to 42 U.S.C. § 3613(b). (Id. at 11.) 14 The OSC indicated that a copy of the Court’s January 19, 2021 screening order would be 15 provided along with the OSC, but, as Plaintiff notes (see Doc. 13 at 11), it appears that the screening 16 order was not mailed to Plaintiff. Accordingly, the Clerk of the Court will be directed to re-send a 17 copy of the screening order to Plaintiff, and Plaintiff will be provided one final opportunity to file 18 an amended complaint, curing the deficiencies identified in the screening order. 19 With regard to Plaintiff’s request for appointment of counsel, 42 U.S.C. § 3613(b) provides 20 that upon application by a person alleging a discriminatory housing practice or a person against 21 whom such a practice is alleged, the court may appoint an attorney for such person. In civil 22 proceedings, there is no absolute right to counsel.1 Hedges v. Resolution Trust Corp., 32 F.3d 1360, 23 1363 (9th Cir. 1994). The determination of whether to appoint counsel “is left to the sound 24 discretion of the district court.” Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 25 1991). 26 1 The Court notes that district courts also have discretionary authority under 28 U.S.C. § 1915(e)(1) to designate counsel 27 to represent an indigent civil litigant in “exceptional circumstances.” 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 28 merits [and] the ability of the petitioner to articulate h[er] claims pro se in light of the complexity of the legal issues 1 There appears to be no case law from the Ninth Circuit Court of Appeals interpreting 2 appointment of counsel pursuant to 42 U.S.C. § 3613(b). District courts in the Ninth Circuit have 3 found case law on the appointment of an attorney in Title VII employment discrimination cases, 4 pursuant to 42 U.S.C. § 2000e–5, instructive on applying the provisions of 42 U.S.C. § 3613(b), 5 “given the similar nature of the underlying legal actions and the statutory language permitting the 6 appointment of an attorney under these statutes.” Hicks v. Makaha Valley Plantation Homeowners 7 Ass’n, No. CIV. 14–00254 HG–BMK, 2015 WL 1608454, at *3 (D. Haw. Apr. 9, 2015) (citing 8 Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) (finding that most courts applying 9 the Fair Housing Act have analogized it to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 10 2000e et seq., which prohibits discrimination in employment); Pfaff v. U.S. Dep’t of Hous. & Urban 11 Dev., 88 F.3d 739, 745 n.1 (9th Cir. 1996) (noting that in a Fair House Act case the court “may look 12 for guidance to employment discrimination cases.”); Huntington Branch, NAACP v. Town of 13 Huntington, 844 F.2d 926, 934–35 (2d Cir. 1988), aff’d, 488 U.S. 15 (1988) (Title VII analysis is 14 persuasive in interpreting Title VIII)); see also Lihosit v. San Diego Hous. Comm’n, No. 06CV1149 15 J BLM, 2006 WL 7354096, at *3 (S.D. Cal. Dec. 29, 2006). 16 Under Title VII, three factors are relevant to a district court’s determination of whether to 17 appoint counsel: “(1) the plaintiff’s financial resources; (2) the efforts made by the plaintiff to secure 18 counsel on his or her own; and (3) the merit of the plaintiff’s claim.” Bradshaw v. Zoological Soc. 19 of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981). “The plaintiff has the burden of persuasion as 20 to all three factors, and an unfavorable finding as to any one factor is fatal to [her] request.” Hicks, 21 2015 WL 1608454, at *3. 22 Here, Plaintiff has satisfied the first factor considering financial resources because this Court 23 has permitted her to proceed in forma pauperis (see Doc. 3). See Lihosit, 2006 WL 7354096, at *3 24 (noting that proceeding in forma pauperis “requires a greater showing of indigency than is required 25 for appointment of counsel”). As for the second factor, the Court presently has no information to 26 assess whether Plaintiff has made reasonably diligent efforts to obtain counsel. Even assuming that 27 Plaintiff has satisfied this factor, Plaintiff’s request for appointment of counsel will be denied 28 because she has not met the third and final factor—that her claims “be shown to have some merit.” 1 Bradshaw, 662 F.2d at 1319. As the Court determined in the January 19, 2021 screening order, 2 Plaintiff’s initial complaint fails to state any cognizable claims. (See Doc. 4.) 3 Based on the foregoing, it is hereby ORDERED that: 4 1. Plaintiff’s request for appointment of counsel is DENIED; 5 2. The Clerk of the Court is DIRECTED to send a copy of this order and the Court’s 6 screening order entered January 19, 2021 (Doc. 4) to Plaintiff at her address listed 7 on the docket for this matter; 8 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must 9 file an amended complaint, curing the deficiencies identified by the Court in 10 the January 19, 2021 screening order, or a notice of voluntary dismissal; and 11 4. If Plaintiff fails to file an amended complaint in compliance with this order, the 12 undersigned will recommend to the assigned district judge that this action be 13 dismissed for failure to state a claim and to obey a court order. 14 IT IS SO ORDERED. 15 16 Dated: September 10, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28