Holcomb v. Sinot

Full title: DAVID HOLCOMB, Plaintiff, v. VALERIE SINOT and LARRY SULLIVAN, Defendant

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Jun 21, 2005

No. SA-05-CA-19-WRF (W.D. Tex. Jun. 21, 2005)

Opinion

No. SA-05-CA-19-WRF.

June 21, 2005

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

W. ROYAL FURGESON, District Judge

BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on February 3, 2005 (Docket No. 5). The Magistrate Judge recommended the following: that Plaintiff's motion for leave to proceed in forma pauperis be denied because Plaintiff has not stated a non-frivolous federal cause of action upon which relief may be granted, and that Plaintiff's motion for appointment of counsel be denied because Plaintiff does not have a right to appointment of counsel to prosecute frivolous claims. In summary, the Magistrate Judge recommended that Plaintiff's case be dismissed without prejudice. Plaintiff filed no objections to the Memorandum and Recommendation. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY.

BACKGROUND

Plaintiff's complaint alleges violations of Title VII of the Civil Rights Act of 1964.¹ Plaintiff applied for employment at the University of Texas Health Sciences Center (UTHSC) in San Antonio, and claims that Defendants refused to pay him $9.00 an hour for employment. However, Plaintiff admits that he was offered employment at $6.50 to $7.00 an hour full time (40 hours a week). Plaintiff alleges that the failure to hire him at the rate of $9.00 an hour was discrimination based on the fact that he is hearing impaired.² He provides the names of two defendants, but offers no other information about them except that they are located at the UTHSC. According to an attachment to the complaint, the Equal Employment Opportunity Commission (EEOC) determined that it could not conclude whether Plaintiff had suffered a violation under Title VII based on the information provided. Plaintiff filed a motion to proceed in forma pauperis and a motion for appointment of counsel on January 10, 2005. Both motions were referred to United States Magistrate Judge Pamela Mathy. Magistrate Judge Mathy ordered that both motions be held in abeyance, pending Plaintiff's completion of a questionnaire. The Order notified Plaintiff that unless he could demonstrate a non-frivolous cause of action, his motion to proceed in forma pauperis would be denied. Plaintiff responded to the questionnaire on January 24, 2005. Subsequently, the Magistrate Judge reviewed the questionnaire and recommended that Plaintiff's motions for appointment of counsel, and to proceed in forma pauperis, be denied and that Plaintiff's case be dismissed without prejudice.

1 Docket No. 5 at 2.

2 Id. at 3.

STANDARD OF REVIEW

The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service.³ The Court need not consider objections that are frivolous, conclusive, or general in nature.⁴ If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law.⁵ In the instant case, Plaintiff filed no specific objections to the Magistrate Judge's Memorandum and Recommendation, thus warranting review of the Magistrate Judge's Memorandum and Recommendation for findings and conclusions that are either clearly erroneous or contrary to law.

3 28 U.S.C. § 636(b)(1).

4 Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).

5 See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

ANALYSIS

Plaintiff asserts a Title VII employment discrimination violation against the two defendants. According to the court ordered questionnaire, he bases this assertion on the following statement, "I feel $9.00 an hour [is a] fair wage for work."⁶ He offers no further evidence for the basis of this claim. Plaintiff also claims that Defendants should have had an interpreter present for the employment interview, but does not allege that the absence of an interpreter impaired any communication between Plaintiff and Defendants, or about the hiring decision.⁷ A. 42 U.S.C. § 2000e

6 Docket No. 4 at 2.

7 Docket No. 5 at 3.

Plaintiff alleges Title VII violations based on employment discrimination, but does not provide information as to the nature of the discrimination, other than the fact that he is hearing impaired and was not offered $9.00 an hour. Federal district courts have original jurisdiction over Title VII claims.⁸ 42 U.S.C. § 2000e-2 (commonly referred to as Title VII) states:

8 42 U.S.C. § 2000e-5(f).

(a) Employer practices. It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. ⁹

9 42 U.S.C. § 2000e-2 (emphasis added).

Although Title VII prohibits certain employment discrimination practices (based on race, color, religion, sex or national origin), allegations of employment discrimination based on disability are not covered. Therefore, Plaintiff does not assert a valid claim for consideration by this Court.

B. Plaintiff's Motions to Proceed in forma pauperis and for Appointment of Counsel

Plaintiff filed motions to proceed in forma pauperis and for appointment of Counsel. After Plaintiff completed the Court ordered questionnaire, the Magistrate Judge recommended that the motions be denied on the ground that the case is frivolous. The federal in forma pauperis statute states:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —

(A) the allegation of poverty is untrue; or

(B) the action or appeal —

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.¹⁰

10 28 U.S.C. § 1915(e)(2).

Congress enacted the federal in forma pauperis statute in order to guarantee that no citizen was denied an opportunity to bring an action, civil or criminal, in any court of the United States, solely because financial limitations made it impossible to pay or secure the costs of litigation.¹¹ However, Congress also recognized that a litigant whose costs are assumed by the public lacks an economic incentive to refrain from filing frivolous lawsuits.¹² In response, Congress included subsection (e) above, which allows the courts to dismiss an in forma pauperis complaint if satisfied that the action is frivolous. A frivolous case lacks an arguable basis in either law or fact.¹³ District courts are in the best position to determine which cases fall within this category because they are familiar with factually frivolous claims.¹⁴

11 Denton v. Hernandez, 504 U.S. 25, 32 (1992).

12 Neitzke v. Williams, 490 S.C. 319, 324 (1989).

13 Id. at 325.

14 Denton v. Hernandez, 504 U.S. 25, 33 (1992).

In the instant case, Plaintiff asserts that he is the victim of employment discrimination but provides no further information as to the nature of the discrimination, other than the fact that he is deaf. Plaintiff provides no evidence and information in support of his allegations, other than he feels that $9.00 an hour is a fair wage.¹⁵ He cites no legal authority to support the assertion that Defendants must pay him the $9.00 hourly wage rate. Nor does he assert that UTHSC employed other persons with a wage rate of $9.00 an hour who were less or equally competent as Plaintiff.

15 Docket No. 5 at 10.

Furthermore, Plaintiff alleges that Defendants should have provided an interpreter during the interview, but provides no reason why he and Defendants were unable to communicate effectively. In fact, Plaintiff concedes that Defendants offered him employment at an hourly wage of $6.50 to $7.00. This indicates that Defendants effectively communicated with Plaintiff to some degree. Plaintiff did not explain how the presence of an interpreter would have made a difference in his communication with Defendants, or how an interpreter would have assisted him in obtaining employment at an hourly rate of $9.00.

In sum, Plaintiff has provided no factual or legal basis to conclude that Defendants must employ him at an hourly rate of $9.00 or provide an interpreter for the deaf. The Court's order for Plaintiff to complete the questionnaire provided him an opportunity to provide supporting evidence or authority as to his claims. Plaintiff failed to provide any such evidence and failed to object to the Magistrate Judge's Memorandum and Recommendation. This Court agrees with the Magistrate Judge and finds that Plaintiff's claims were given sufficient consideration and that Plaintiff had the further opportunity to provide more evidence or information to the Court in support of his claims. This Court hereby concludes that Plaintiff's motions were properly denied, adopts the Memorandum and Recommendation, and rules that the Magistrate Judge's findings and conclusions are neither clearly erroneous nor contrary to law.

CONCLUSION

Accordingly, the Court ORDERS that the Memorandum and Recommendation be ADOPTED IN ITS ENTIRETY.

It is further ORDERED that Plaintiff's Motion to proceed in forma pauperis be DENIED.

It is further ORDERED that Plaintiff's Motion for appointment of counsel be DENIED.

FINAL JUDGMENT

On this day the Court entered an order adopting the Memorandum and Recommendation of the United States Magistrate Judge and dismissing Plaintiff's Complaint. The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.

It is ORDERED that the Memorandum and Recommendation of the Magistrate Judge be ADOPTED IN ITS ENTIRETY (Docket No. 5).

It is further ORDERED that all of Plaintiff's claims be DISMISSED WITHOUT PREJUDICE.

It is further ORDERED that each party bear its own costs.