Opinion
CIVIL NO. 18-00400 DKW-RLP
10-24-2018
CARSON A.T. PEAPEALALO, Plaintiff, v. SECRETARY OF THE NAVY, Defendant.
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL
Within fourteen days after a party is served with a copy of the Findings and Recommendation, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections in the United States District Court. A party must file any objections within the fourteen-day period allowed if that party wants to have appellate review of the Findings and Recommendation. If no objections are filed, no appellate review will be allowed. --------
Before the Court is Plaintiff's Request for Appointment of Counsel Under the Civil Rights Act of 1964: 42 U.S.C. § 2000e-5(f)(1)(B). ECF No. 3. The Court finds this matter suitable for disposition without a hearing pursuant to Rule 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 materials submitted by Plaintiff, the Court FINDS and RECOMMENDS that Plaintiff's Request for Appointment of Counsel be DENIED.
BACKGROUND
Plaintiff, proceeding pro se, filed a Complaint on October 19, 2018, against the Secretary of the Navy alleging that Defendant unlawfully discriminated against him based on his age. ECF No. 1. Under the Age Discrimination in Employment Act ("ADEA"), it is unlawful to discriminate in employment against any individual who is at least 40 years old "because of such individual's age." 29 U.S.C. § 623; Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000).
DISCUSSION
As an initial matter, the Court notes that Plaintiff requests counsel pursuant to Section 706(f) of the Civil Rights Act of 1964, which authorizes courts to appoint counsel to represent plaintiffs who are pursuing claims of employment discrimination based on race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-5(f). Based on the Court's review of Plaintiff's Complaint, there was no indication that Plaintiff was asserting such a claim. See ECF No. 1. Accordingly, Plaintiff is not entitled to appointed counsel under this statute.
To the extent Plaintiff is requesting counsel based on his financial situation, the court may request counsel to represent an indigent litigant under 28 U.S.C. § 1915(e)(1) only under "exceptional circumstances," taking into account 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." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (internal citations and quotations omitted).
Although a preliminary review of Plaintiff's Complaint indicates that Plaintiff's claim may have merit, Plaintiff's Request does not show that Plaintiff is indigent. See ECF No. 3. Plaintiff's Request indicates that he is employed, earns $6,250 per month, receives disability benefits, and has additional employment income. Id. at 5-6. Although Plaintiff indicates that he has three dependents, he does not provide the requested information regarding the relationship of those individuals to him. Id. at 7. Based on the information provided, Plaintiff's income exceeds the poverty threshold. See Annual Update of the Health and Human Services Poverty Guidelines, 83 Fed. Reg. 2643-44 (Jan. 18, 2018) (stating that the poverty guideline for a four-person household in Hawaii is $28,870). Further, Plaintiff does not provide any other information in his Request that presents an extraordinary circumstance to appoint counsel.
CONCLUSION
In accordance with the foregoing, the Court FINDS and RECOMMENDS that Plaintiff's Request for Appointment of Counsel be DENIED.
IT IS SO FOUND AND RECOMMENDED.
DATED AT HONOLULU, HAWAII, OCTOBER 24, 2018.
/s/_________
Richard L. Puglisi
United States Magistrate Judge