Ferrell, Jr. v. DeJoy ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TERRENCE JESSE FERRELL, JR., Case No. 1:21-cv-01796-DAD-SKO 10 Plaintiff, FIRST SCREENING ORDER 11 v. ORDER FOR PLAINTIFF TO: 12 (1) FILE A FIRST AMENDED COMPLAINT; OR 13 LOUIS DEJOY, et al., (2) NOTIFY THE COURT THAT HE 14 Defendants. WISHES TO STAND ON HIS COMPLAINT 15 (Doc. 1) 16 THIRTY-DAY DEADLINE 17 ORDER DENYING MOTION FOR 18 APPOINTMENT OF COUNSEL AND MOTION TO SUBMIT RECORDING 19 (Docs. 3 , 4) 20 21 22 I. INTRODUCTION 23 A. Background 24 On December 21, 2021, Plaintiff Terrence Jesse Ferrell, Jr. (“Plaintiff”), proceeding pro se, 25 filed a complaint against Postmaster General Louis DeJoy, the United States Postal Service, Sonia 26 Laney, Airan Lopez, and Christina Gonzales (“Defendants”), alleging wrongful termination from 27 his position at the United States Postal Office. (Doc. 1 (“Compl.”).) Plaintiff also filed an 28 application to proceed in forma pauperis, which was granted on December 27, 2021. (Docs. 2 & 1 5.) Plaintiff’s complaint is now before the Court for screening. 2 Upon review, the Court concludes that the complaint fails to state any cognizable claims. 3 Plaintiff has the following options as to how to proceed. Plaintiff may file an amended complaint, 4 which the Court will screen in due course. Alternatively, Plaintiff may file a statement with the 5 Court stating that he wants to stand on this complaint and have it reviewed by the presiding district 6 judge, in which case the Court will issue findings and recommendations to the district judge 7 consistent with this order. If Plaintiff does not file anything, the Court will recommend that the 8 case be dismissed. 9 Also pending before the Court are Plaintiff’s motion for appointment of counsel (Doc. 3) 10 and motion to submit a recording on a USB drive (“motion to submit evidence”) (Doc. 4). For the 11 reasons set forth below, Plaintiff’s motion for appointment of counsel will be denied without 12 prejudice, and Plaintiff’s motion to submit evidence will be denied. 13 B. Screening Requirement and Standard 14 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 15 each case and shall dismiss the case at any time if the Court determines the allegation of poverty is 16 untrue, or the action is frivolous or malicious, fails to state a claim upon which relief may be 17 granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. 18 § 1915(e)(2). If the Court determines that a complaint fails to state a claim, leave to amend may 19 be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez 20 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 21 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 22 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 23 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 24 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff 25 must allege a minimum factual and legal basis for each claim that is sufficient to give each 26 defendant fair notice of what plaintiff’s claims are and the grounds upon which they rest. See, 27 e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 28 F.2d 795, 798 (9th Cir. 1991). 1 C. Summary of the Complaint 2 Plaintiff is a white, Christian male, who was born on February 29, 1980. (Compl. at 19.) 3 He alleges that he was wrongfully terminated from his position with the United States Postal 4 Office for “unacceptable conduct.” (Id. at 7.) According to Plaintiff, Defendant Laney, a manager 5 of the Woodward Park Post Office, was lying when she accused Plaintiff of using a racial slur and 6 making hand gestures toward her on September 21, 2020. (Id.) 7 Defendant Lopez, a manager of the Hughes Post Office conducted an investigation of the 8 alleged incident. (Compl. at 7.) Plaintiff alleges that Defendant Lopez was “not a neutral 9 representative nor did she conduct a thorough investigation,” in view of Plaintiff’s and Lopez’s 10 “past history in which she was proven to have made false allegations in an attempt to wrongfully 11 terminate [Plaintiff] herself.” (Id.) 12 Defendant Gonzales, a manager of the Clinter Post Office, “represented the formal A 13 grievance process.” (Compl. at 7.) Plaintiff alleges that he presented evidence of a recording 14 from September 21, 2020, to Defendant Gonzales, which proved that Plaintiff never used a racial 15 slur against Defendant Laney. (Id.) After listening to the recording, Gonzales “stated on the 16 record” that Plaintiff never stated the nature of Laney’s accusation against him. (Id.) Nonetheless, 17 Gonzales “still continued to allow the grievance to go on unsettled as she was instructed due to the 18 hatred that [Defendants Lopez and Laney] harvest[ed] against [Plaintiff].” (Id.) 19 In the section of the complaint form in which Plaintiff is asked to identify the specific 20 bases for federal question jurisdiction, Plaintiff listed the following: “labor/management relation 21 [sic],” “Fair Labor Standards Act,” “slander,” “civil rights,” and “False Claims Act.” (Compl. at 22 4.) An EEO Complaint of Discrimination in the Postal Service attached to the complaint indicates 23 that Plaintiff alleged discrimination based on race, color, sex, age, and retaliation. (Id. at 15.) 24 Notes from the EEO Alternative Dispute Resolution Specialist assigned to Plaintiff’s case 25 similarly reflect that Plaintiff alleged “race, color, religion, sex, age, EPA discrimination when on 26 9/21/2020 9/20/2020 and 4/30/2021 management removed [Plaintiff].” (Id. at 19.) Plaintiff’s 27 requested relief includes reinstatement, lost wages, and one million dollars in damages for “pain 28 and suffering.” (Id. at 7.) 1 D. Pleading Requirements Under Federal Rule of Civil Procedure 8(a) 2 In determining whether a complaint fails to state a claim, the Court uses the same pleading 3 standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must 4 contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” 5 Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of 6 the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 8 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 9 unwarranted inferences.” Doe I v. Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 10 (internal quotation marks and citation omitted). Since Plaintiff is appearing pro se, the Court must 11 construe the allegations of her complaint liberally and must afford her the benefit of any doubt. 12 See Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the 13 liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 14 490 U.S. 319, 330 n.9 (1989). 15 To survive screening, Plaintiff’s claims must be facially plausible, which requires 16 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 17 for the misconduct alleged. Iqbal, 556 U.S. at 678; Moss v. United States Secret Service, 572 F.3d 18 962, 969 (9th Cir.2009). The “sheer possibility” that a defendant acted unlawfully is not 19 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 20 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 21 II. DISCUSSION 22 A. Shotgun Pleading 23 A “[s]hotgun pleading occurs when one party pleads that multiple parties did an act, 24 without identifying which party did what specifically; or when one party pleads multiple claims, 25 and does not identify which specific facts are allocated to which claim.” Hughey v. Drummond, 26 No. 2:14–cv–00037–TLN–AC, 2014 WL 579365, at *5 (E.D. Cal. Nov. 6, 2014) (citation 27 omitted). This violates Rule 10 of the Federal Rules of Civil Procedure, which requires that “[a] 28 party must state its claims or defenses in numbered paragraphs, each limited as far as practicable 1 to a single set of circumstances,” and Rule 8, which requires that the complaint contain a “short 2 and plain statement” of entitlement to relief. 3 Here, Plaintiff’s complaint simply alleges “[w]rongful termination from the United States 4 Postal Service.” (Compl. at 7.) The only mention of any statutory or legal basis for Plaintiff’s 5 allegation of wrongful termination is in the section of the complaint form pertaining to federal 6 question jurisdiction, under which Plaintiff lists the following: “labor/management relation [sic],” 7 “Fair Labor Standards Act,” “slander,” “civil rights,” and “False Claims Act.” (Id. at 4.) This is 8 not sufficient because it does not give Defendants “fair notice” of the claims against which they 9 must defend and the facts and legal theories that give rise to the claims. Plaintiff’s complaint does 10 not clearly identify what claims he is asserting, which facts relate to which claim, or how the facts 11 relate to the legal claims raised. 12 In light of these deficiencies, the Court will grant Plaintiff leave to amend his complaint 13 and set forth his claims more clearly. In any amended complaint, Plaintiff must clearly state 14 which claim is against which defendant and the facts that support and show that the specific 15 defendant committed the violation asserted as the legal basis for the claim. See Fed. R. Civ. 16 P. 8(a). 17 B. Legal Standards 18 In the event Plaintiff amends his complaint, the Court provides the following legal 19 standards that may be relevant to his action: 20 1. Title VII Claims 21 Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., makes it “an unlawful 22 employment practice for an employer” to “discriminate against any individual with respect to his 23 compensation, terms, conditions, or privileges of employment, because of such individual’s race, 24 color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). “It is well established that a 25 federal employee or applicant alleging employment discrimination based on race, color, religion, 26 sex, or national origin has a complete remedy under Title VII[.]” Fitten v. Whitley, No. 2:21–CV– 27 00513–TLN–AC PS, 2021 WL 4776975, at *5 (E.D. Cal. Oct. 13, 2021) (citing Brown v. Gen. 28 Servs. Admin., 425 U.S. 820, 834 (1976) (holding that Title VII is the exclusive judicial remedy 1 for claims of discrimination in federal employment); Williams v. Gen. Servs. Admin., 905 F.2d 2 308, 311 (9th Cir. 1990) (precluding, in the federal employment discrimination context, claims 3 such as tort and constitutional claims that seek to redress wrongs predicated on discriminatory 4 employment actions where an “adequate statutory procedure exists for dealing with such claims”); 5 White v. Gen. Servs. Admin., 652 F.2d 913, 917 (9th Cir. 1981) (holding that Title VII is the sole 6 remedy for a race discrimination claim by a federal employee, including claims of retaliation for 7 filing EEO complaints)). 8 As relevant to Defendants Laney, Lopez, and Gonzales, the Court notes that “Title VII 9 does not provide a cause of action for damages against supervisors or fellow employees.” Chacon 10 v. Hous. Auth. of Cty. of Merced, No. 1:10–CV–2416 AWI GSA, 2011 WL 2621313, at *3 (E.D. 11 Cal. June 29, 2011). The Ninth Circuit has consistently held that non-employer individuals cannot 12 be held personally liable under Title VII. See Holly D. v. California Institute of Technology, 339 13 F.3d 1158, 1179 (9th Cir. 2003) (affirming the district court’s grant of summary judgment in favor 14 of an individual defendant because “[w]e have consistently held that Title VII does not provide a 15 cause of action for damages against supervisors or fellow employees”); Pink v. Modoc Indian 16 Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir. 1998) (“[C]ivil liability for employment 17 discrimination does not extend to individual agents of the employer who committed the violations, 18 even if that agent is a supervisory employee.”).1 19 a. Exhaustion of Administrative Remedies 20 To establish subject-matter jurisdiction over a Title VII claim, a plaintiff must exhaust his 21 or her administrative remedies. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002) 22 (citing EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)). “Under Title VII, a plaintiff 23 must exhaust [his] administrative remedies by filing a timely charge with the [Equal Employment 24 Opportunity Commission (“EEOC”)], or the appropriate state agency, thereby affording the 25 agency an opportunity to investigate the charge.” Id. (citing 42 U.S.C. § 2000e–5(b)). “The 26 27 1 The same exhaustion requirement applies to claims pursuant to the Age Discrimination in Employment Act (“ADEA”), discussed below. See Miller v. Maxwell’s Intern. Inc., 991 F.2d 583, 587–88 (9th Cir. 1993) (noting the 28 “the similarities in the Title VII and ADEA statutory schemes” and holding that individual defendants could not be 1 administrative charge requirement serves the important purposes of giving the charged party 2 notice of the claim and narrowing the issues for prompt adjudication and decision.” Id. (citation, 3 internal quotation marks, and alteration omitted). Substantial compliance with the administrative 4 exhaustion process is a jurisdictional prerequisite to the filing of a civil action against that 5 employer under federal law. See Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) 6 (case involving Title VII claim). The scope of the claims presented to the EEOC by way of formal 7 charge determines the permissible scope of the claims that may be presented in the district court. 8 Leong v. Potter, 347 F.3d 1117, 1121–22 (9th Cir. 2003). 9 A plaintiff must file an administrative charge with the EEOC against his employer within 10 one hundred and eighty days after the alleged unlawful employment practice occurred. 42 U.S.C. 11 § 2000e–5(e)(1). Title VII provides that within ninety days after the issuance of a right-to-sue 12 notice, “a civil action may be brought against the respondent named in the charge.” 42 U.S.C. § 13 2000e–5(f)(1). 14 To sufficiently allege exhaustion of administrative remedies, Plaintiff “must allege the 15 facts relevant to that charge, including: (1) the alleged violation(s); (2) when the charge was filed; 16 and (3) who it was against. The charge itself should be attached as an exhibit if possible.” 17 Harshaw v. Lew, No. 1:16–cv–00963–AWI–SKO, 2016 WL 3906913, at *3 (E.D. Cal. July 18, 18 2016) (quoting Whitsitt v. Hedy Holmes Staffing Servs., No. 2:13–cv–0117–MCE–AC, 2014 WL 19 5019667, at *3 (E.D. Cal. Oct. 7, 2014)). “A description of the charge to the EEOC and a copy of 20 the right-to-sue notice are necessary to provide the Court with jurisdiction to hear Plaintiff’s 21 claims and the scope of its review.” Id. (citing Leong, 347 F.3d at 1122). 22 Plaintiff’s complaint does not allege that he exhausted his administrative remedies. 23 Documentation attached to the complaint indicates that Plaintiff engaged with the administrative 24 process to an extent (see Compl. at 14–22), but there is no indication that Plaintiff filed a formal 25 charge with the EEOC or that he has received a right-to-sue letter. In the absence of this 26 information, the Court cannot determine whether Plaintiff has exhausted his administrative 27 remedies as to the conduct alleged in the complaint, and whether it has jurisdiction to proceed with 28 the case under Title VII. Accordingly, Plaintiff may either file an amended complaint alleging 1 sufficient facts indicating that he has exhausted his administrative remedies, or he may dismiss 2 this action and refile once he has filed a timely claim with the EEOC and received a right-to-sue 3 notice. 4 b. Sex, Race, Color, and Religion Discrimination 5 If Plaintiff has properly exhausted his administrative remedies, the Court will proceed with 6 an analysis of his claims. Title VII states that it is an unlawful employment practice for an 7 employer to discriminate against an employee because of her “race, color, religion, sex, or national 8 origin.” 42 U.S.C. § 2000e–2(b). To establish a prima facie case of intentional discrimination or 9 “disparate treatment” under Title VII, a plaintiff must show that: “(1) he is a member of a 10 protected class; (2) he was qualified for his position; (3) he experienced an adverse employment 11 action; and (4) similarly situated individuals outside his protected class were treated more 12 favorably, or other circumstances surrounding the adverse employment action give rise to an 13 inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); 14 see also Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1195–96 (9th Cir. 15 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). 16 At the pleading stage, a plaintiff is not required to allege specific facts establishing each of 17 these four elements to make out the type of prima facie case required at the evidentiary stage. 18 Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002); see also Twombly, 550 U.S. at 569–70 19 (reaffirming Swierkiewicz). The plaintiff must, however, allege facts sufficient to put the 20 defendant on fair notice of the basis for the claims, including, for example, that the plaintiff’s 21 employer discriminated against the plaintiff because of his race, color, religion, sex, or national 22 origin and facts to support that assertion, and at least some facts regarding the adverse 23 employment action and the events leading up to the adverse employment action. See 24 Swierkiewicz, 534 U.S. at 514; see also Fresquez v. County of Stanislaus, No. 1:13–cv–897–AWI– 25 SAB, 2014 WL 1922560, at *2 (E.D. Cal. May 14, 2014) (“[W]hile a plaintiff need not plead facts 26 constitut[ing] all elements of a prima facie employment discrimination case . . . to survive a 27 motion to dismiss, courts look to those elements . . . so as to decide, in light of judicial experience 28 and common sense, whether the challenged complaint contains sufficient factual matter, accepted 1 as true, to state a [plausible] claim to relief[.]”). 2 c. Retaliation 3 Title VII prohibits adverse employment actions against an employee who has “opposed 4 any practice made an unlawful employment practice by [Title VII]” or who has “made a charge, 5 testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under 6 [Title VII].” 42 U.S.C. § 2000e–3. To state a claim for retaliation, Plaintiff must establish that: 7 (1) he engaged in a protected activity under Title VII; (2) the employer subjected the plaintiff to an 8 adverse employment action; and (3) a causal link exists between the protected activity and the 9 employer’s action. Westendorf v. W. Coast Contractors of Nevada, Inc., 712 F.3d 417, 422 (9th 10 Cir. 2013); Villiarimo v. Aloha Is. Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002); Passantino v. 11 Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000); Steiner v. 12 Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994); Yartzoff v. Thomas, 809 F.2d 1371, 13 1375 (9th Cir. 1987). Causation “may be inferred from circumstantial evidence, such as the 14 employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time 15 between the protected action and the allegedly retaliatory employment decision.” Yartzoff, 809 16 F.2d at 1376. 17 2. ADEA Claims 18 The Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., makes it 19 illegal for an employer: 20 (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or 21 privileges of employment, because of such individual’s age; 22 (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise 23 adversely affect his status as an employee, because of such individual's age; or 24 (3) to reduce the wage rate of any employee in order to comply with [the ADEA]. 25 29 U.S.C. § 623(a). 26 a. Exhaustion of Administrative Remedies 27 The requirement of exhaustion of administrative remedies for Title VII claims, as 28 discussed above, also applies to claims brought under the ADEA. See Whisitt v. Hedy Holmes 1 Staffing Services, No. 2:13–cv–0117–MCE–AC, 2014 WL 5019667, at *4–5 (E.D. Cal. Oct. 7, 2 2014) (“The scope of the [ADEA claims raised in the] EEOC complaint determines the 3 permissible scope of the claims that may be presented in district court.”). 4 b. Age Discrimination 5 To establish a prima facie case of age discrimination under the disparate treatment theory 6 of the ADEA, a plaintiff must show that he: “(1) was a member of the protected class (aged 40 or 7 older); (2) was performing his job satisfactorily; (3) was discharged; and (4) was replaced by a 8 substantially younger employee with equal or inferior qualifications or some other circumstances 9 that would lead to an inference of age discrimination.” Brazill v. California Northstate College of 10 Pharmacy, LLC, 904 F. Supp. 2d 1047, 1052 (E.D. Cal. Oct. 24, 2012) (citing Reeves v. 11 Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Rose v. Wells Fargo & Co., 902 F.2d 12 1417, 1421 (9th Cir. 1990)).2 A plaintiff may also state a claim under the ADEA by alleging he or 13 she was demoted, instead of discharged. See Jones v. Lehigh Southwest Cement Co., Inc., No. 14 1:12–cv–0633–AWI–JLT, 2013 WL 3006418, at *6 (E.D. Cal. June 14, 2013) (citing O’Connor v. 15 Counsol. Coin Caterers Corp., 517 U.S. 308, 310 (1996)). 16 c. Retaliation 17 To establish a prima facie case of retaliation under the ADEA, as with a Title VII 18 retaliation claim, the plaintiff “must establish (1) that he engaged in a protected activity; (2) that 19 he suffered an adverse employment decision; and (3) that a causal link exists between the 20 protected activity and the employment decision.” Whitshitt v. Barbosa, No. CIV S–06–0397 MCE 21 JFM PS, 2007 WL 1725487, at *3 (E.D. Cal. June 14, 2007) (citing Lyons v. England, 307 F.3d 22 1092, 1118 (9th Cir. 2002)). 23 C. Leave to Amend 24 The Court has screened Plaintiff’s complaint and finds that it fails to state any cognizable 25 claim. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely give 26 27 2 As with claims brought under Title VII, “[a] plaintiff in an ADEA case is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss” or screening of the complaint. See Sheppard v. David Evans & 28 Assoc., 694 F.3d 1045, 1050 n.2 (9th Cir. 2012). However, if the “plaintiff pleads a plausible prima facie case of 1 leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with 2 time to file an amended complaint, so Plaintiff can remedy the deficiencies identified in this order. 3 Lopez, 203 F.3d at 1126–30. 4 Plaintiff is granted leave to file an amended complaint within thirty days. If Plaintiff chooses to amend his complaint, in his amended complaint he must clearly state his legal claims, 5 identify which defendant the claim is against, and allege facts that support and show that the 6 specific defendant engaged in conduct asserted as the legal basis for the claim. Fed. R. Civ. P. 7 8(a); Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff should 8 note that although he has been given the opportunity to amend, it is not for the purpose of 9 changing the nature of this suit or adding unrelated claims. George v. Smith, 507 F.3d 605, 607 10 (7th Cir. 2007) (no “buckshot” complaints). 11 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey v. 12 Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in 13 itself without reference to the prior or superseded pleading, E.D. Cal. L.R. 220. Therefore, in an 14 amended complaint, as in an original complaint, each claim and the involvement of each defendant 15 must be sufficiently alleged. The amended complaint should be clearly and boldly titled “First 16 Amended Complaint,” refer to the appropriate case number, and be an original signed under 17 penalty of perjury. Plaintiff’s first amended complaint must be no longer than twenty-five pages, 18 including exhibits. 19 Plaintiff has a choice on how to proceed. He may file an amended complaint, which the 20 Court will screen in due course. Alternatively, Plaintiff may choose to stand on his complaint 21 subject to the Court issuing findings and recommendations to a district judge consistent with this 22 order. 23 III. MOTION TO FOR APPOINTMENT OF COUNSEL 24 With respect to Plaintiff’s motion for the appointment of counsel, Plaintiff does not have a 25 constitutional right to the appointment of counsel in this action. Palmer v. Valdez, 560 F.3d 965, 26 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Court may 27 request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), but it will do so 28 only if exceptional circumstances exist. Palmer, 560 F.3d at 970; Wilborn v. Escalderon, 789 1 F.2d 1328, 1331 (9th Cir. 1986). In making this determination, the Court must evaluate the 2 likelihood of success on the merits and the ability of Plaintiff to articulate his claims pro se in light 3 of the complexity of the legal issues involved. Palmer, 560 F.3d at 970 (citation and quotation 4 marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive, and they must be 5 viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks omitted); Wilborn 789 6 F.2d at 1331. 7 Given that the complaint as currently pleaded fails to state any cognizable claims, the 8 Court cannot adequately assess the complexity of Plaintiff’s case at this time to determine whether 9 exceptional circumstances exist that would justify seeking counsel willing to represent Plaintiff in 10 this action on a pro bono basis. Plaintiff’s motion to appoint counsel will therefore be denied at 11 this time without prejudice to its renewal at a later stage of this litigation. 12 IV. MOTION TO SUBMIT USB WITH RECORDING 13 As for Plaintiff’s motion to submit evidence, the Court must accept Plaintiff’s allegations 14 as true at the pleading stage. See Wal–Mart Stores, Inc., 572 F.3d at 681. Plaintiff is not required 15 to submit evidence in support of his contentions. Therefore, Plaintiff’s motion to submit evidence 16 will be denied. 17 V. CONCLUSION AND ORDER 18 Based on the foregoing, IT IS ORDERED that: 19 1. Plaintiff’s motion to appoint counsel (Doc. 3) is denied without prejudice; 20 2. Plaintiff’s motion to submit evidence (Doc. 4) is denied. The Clerk of the Court is 21 directed to return the USB drive lodged with the Court to Plaintiff at his address of 22 record; 23 3. Within thirty (30) days from the date of service of this order, Plaintiff shall either: 24 a. File a First Amended Complaint; or 25 b. Notify the Court in writing that he wishes to stand on this complaint; 26 4. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the 27 amended complaint “First Amended Complaint” and refer to case number 1:21-cv- 28 01796-DAD-SKO; and 1 5. Failure to comply with this order may result in the dismissal of this action. 2 IT IS SO ORDERED. 3 4 Dated: April 11, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28