Blackshire v. Buca Restaurants 2, Inc.

• Court: District Court, S.D. California
• Decided: January 3, 2022
• Docket: 3:21-cv-01505
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT BLACKSHIRE, JR., Case No.: 21-cv-01505-JLS-WVG

12 Plaintiff, ORDER DENYING MOTIONS FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS AND FOR 14 BUCA RESTAURANTS 2, INC., et al., APPOINTMENT OF COUNSEL 15 Defendants. [ECF Nos. 2; 3] 16 17 Presently before the Court are pro se Plaintiff Robert Blackshire, Jr.’s motions for 18 leave to proceed in forma pauperis (ECF Nos. 2; 2-1) and for appointment of counsel 19 pursuant to 42 U.S.C. § 2000e-5(f)(1) (ECF No. 3). The Court construes Plaintiff’s pro se 20 Complaint to assert, inter alia,1 workplace discrimination claims pursuant to Title VII of 21 the Civil Rights Act of 1964 against his employer, Defendant Buca Restaurants 2, Inc. 22 (See, e.g., ECF No. 1 at 10.) For the reasons set forth below, the Court DENIES Plaintiff’s 23 motions without prejudice. 24

25 26 1 Plaintiff also appears to assert claims against Ana Sepulveda for issuing a “fraudulent” right to sue letter on behalf of the Equal Employment Opportunity 27 Commission (see, e.g., ECF No. 1 at 6) and against the law firm Shegerian & Associates 28 for leaving Plaintiff “without representation” (see, e.g., id. at 25). 1 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 2 I. Legal Standard 3 All parties instituting a civil action, suit, or proceeding in a district court of the 4 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 5 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 6 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 7 § 1915(a)(1). Section 1915(a)(1) provides that: 8 any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or 9 security therefor, by a person who submits an affidavit that includes a 10 statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 11 12 28 U.S.C. § 1915(a)(1). As § 1915(a)(1) does not itself define what constitutes insufficient 13 assets to warrant IFP status, the determination of indigency falls within the district court’s 14 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 15 1915 typically requires the reviewing court to exercise its sound discretion in determining 16 whether the affiant has satisfied the statute’s requirement of indigency.”), reversed on other 17 grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient 18 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 19 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. 20 Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely 21 destitute to obtain benefits of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 22 725 (9th Cir. 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with 23 some particularity, definiteness[,] and certainty.’” Escobedo, 787 F.3d at 1234. 24 II. Discussion 25 Plaintiff has not paid the $402 filing fee required to maintain a civil action in this 26 District and instead moves to proceed IFP. Plaintiff submits two form affidavits of assets 27 for the Court’s consideration. (ECF Nos. 2; 2-1.) 28 /// 1 In his Application to Proceed in District Court Without Prepaying Fees or Costs 2 (“First Form Affidavit”) (ECF No. 2), Plaintiff attests to the following: He is unemployed 3 and has $3,000 in cash. (Id. ¶¶ 2–3.) His monthly expenses average $3,021 for: mortgage 4 ($1,551); utilities ($250); home maintenance ($100); food ($250); laundry and dry- 5 cleaning ($50); transportation ($240); and homeowner’s insurance ($580). (Id. ¶ 8.) He 6 does not expect any changes to his monthly income or expenses in the next twelve months, 7 and he estimates that he has spent or will be spending $3,000 for expenses or attorneys’ 8 fees2 in conjunction with this case. (Id. ¶¶ 9–10.) 9 Plaintiff, however, failed to answer or provide a meaningful response to many 10 questions in the First Form Affidavit. Of note, when directed to attest to his total monthly 11 income, Plaintiff answered “N/A.” (Id. ¶ 1.) Additionally, when directed to list all his 12 assets—such as a home, other real estate, or motor vehicles—and their values, Plaintiff 13 answered “N/A.” (Id. ¶ 5.) 14 In his Motion and Declaration Under Penalty of Perjury In Support of Motion to 15 Proceed In Forma Pauperis (“Second Form Affidavit”) (ECF No. 2-1), Plaintiff attests to 16 the following: He is currently unemployed, but in the past twelve months he has received 17 money from “other sources.” (Id. ¶¶ 2; 3.) He does not have a checking, savings, IRA, 18 money market, or CDS account. (Id. ¶ 5.) He owns a 2017 Kia Sportage that is not 19 financed, but nevertheless, he owes $9,000 on it. (Id. ¶ 6.) 20 Again, however, Plaintiff failed to answer many questions in the Second Form 21 Affidavit. Despite attesting that he receives money from “other sources,” Plaintiff failed 22 to describe the source(s) of this money, the amount received, and how much he expects to 23 continue to receive each month. (Id. ¶ 3.) When asked if he owns “any real estate, stocks, 24 bonds, securities, other financial instruments, or other valuable property,” Plaintiff 25

26 2 Although Plaintiff attests that he has, or will, spend $3,000 on expenses or attorneys’ 27 fees in conjunction with this case, Plaintiff is proceeding pro se, and as addressed infra, 28 has requested appointment of pro bono counsel. 1 answered “Yes,” but failed to describe the property or state its value. (Id. ¶ 7.) Plaintiff 2 also left blank questions concerning his last employer (id. ¶ 2.b.), debts or current 3 obligations (id. ¶ 9), assets or items of value (id. ¶ 10), and how he pays for his day-to-day 4 expenses (id. ¶ 11). 5 Along with the First and Second Form Affidavits, Plaintiff also submits a form 6 “Request for Appointment of Counsel Under the Civil Rights Act of 1964, 42 U.S.C. 7 [§] 2000e[-](f)(1)” (“Request for Counsel”) (ECF No. 3). Although not provided for 8 purposes of proceeding IFP, Plaintiff attests to the following in the Request for Counsel: 9 He is unemployed, and in the past twelve months he has not received “any income from a 10 business, profession or other form of self-employment, or in the form of rent payments, 11 interest, dividends, retirement of annuity payments or other sources.” (Id. ¶¶ 8.A., 8.B.i.) 12 He has $2,300 in a savings or checking account. (Id. ¶ 8.B.ii.) He owns “real estate, stocks, 13 bonds, notes, automobiles, or other valuable property.” (Id. ¶ 8.B.iii.) He is single and has 14 no dependents. (Id. ¶ 8.C.i.) He owns a home with a $151,000 mortgage and pays $1,551 15 per month in mortgage payments. (Id. ¶ 8.C.ii.) Including his mortgage payments, his 16 monthly expenses total $4,023 for: thirteen credit cards ($950); water and electricity 17 ($600); food ($450); a BMW ($186); and a Kia Sportage ($286). (Id.) 18 In light of the foregoing, the Court finds that Plaintiff does not allege poverty with 19 particularity, definiteness, or certainty, and, therefore, is not entitled to proceed IFP. For 20 one, Plaintiff’s First and Second Form Affidavits and Request for Counsel are incomplete; 21 Plaintiff either answered many questions in all three filings with “N/A” or did not respond 22 at all. Plaintiff’s incomplete affidavits and unknown financial status alone warrant denial 23 of his request to proceed IFP, for § 1915(a)(1) requires that Plaintiff attest to “all assets 24 [he] possess.” 28 U.S.C. § 1915(a)(1) (emphasis added). 25 Moreover, the Court is dubious as to the accuracy of the financial information 26 Plaintiff does attest too. For example, in the First Form Affidavit, Plaintiff attests that he 27 has only $3,000 in cash, no savings account, and no income, but his monthly expenses 28 average $3,021, including $250 for utilities and $250 for food. (ECF No. 2 ¶¶ 4, 8.) In 1 contrast, in the Request for Counsel—which is dated only three days after the First Form 2 Affidavit—Plaintiff attests that he has no income, $2,300 in cash or in a savings/checking 3 account, and spends $4,023 monthly, including $600 for utilities and $450 for food. (ECF 4 No. 3 ¶ 8.C.ii.) Plaintiff does not account for these discrepancies in his day-to-day 5 expenses, nor does he explain how he is able to afford $3,000–$4,000 in monthly expenses 6 when he has no income, no savings account, and minimal cash savings. Further, Plaintiff’s 7 Second Form Affidavit contradicts the First Form Affidavit and the Request for Counsel, 8 for Plaintiff attests in the Second Form Affidavit that in the past twelve months he has 9 received money from “other sources.” (ECF No. 2-1 ¶ 2.) Plaintiff, however, neither 10 describes what “other sources” he receives money from, nor discloses the amount of money 11 he receives. 12 Additionally, the First and Second Form Affidavits and Request for Counsel are 13 inconsistent as to the assets Plaintiff owns. For example, in the First Form Affidavit, 14 Plaintiff answered “N/A” when directed to list his assets and their values, seemingly 15 attesting that he does not own any assets, including real estate or motor vehicles. (ECF 16 No. 2 ¶ 5.) However, in the Second Form Affidavit, Plaintiff attests that he owns a 2007 17 Kia Sportage and at least one of the following types of assets: “real estate, stocks, bonds, 18 securities, other financial instruments, or other valuable property.” (ECF No. 2-1 ¶ 7.) 19 And in the Request for Counsel, Plaintiff attests that he owns a home and two motor 20 vehicles—a Kia Sportage and a BMW. (ECF No. 3 ¶ 8.C.ii.) From Plaintiff’s inconsistent 21 and incomplete attestations, the Court cannot glean whether Plaintiff is able to pay the 22 filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. 23 III. Conclusion 24 After reviewing the First and Second Form Affidavits and financial information 25 provided in the Request for Counsel, it is apparent to the Court that Plaintiff has not been 26 completely candid as to his financial status. Plaintiff’s inconsistent and incomplete 27 attestations do not demonstrate with “particularity, definiteness, or certainty” that Plaintiff 28 lacks the financial resources to pay the $402 filing fee. Accordingly, Plaintiff’s request to 1 proceed IFP is DENIED. This denial, however, is without prejudice to Plaintiff refiling 2 an IFP motion that accounts for all the above-noted discrepancies and demonstrates that 3 Plaintiff is not abusing the IFP process, which could result in the dismissal of this action 4 or other sanctions.3 See Newsome v. Loterzstain, No. 2:19-cv-0307-JAM-EFB P, 2020 5 WL 4501813, at *3 (E.D. Cal. Aug. 5, 2020) (“[C]ourts routinely dismiss with prejudice 6 cases upon finding that the plaintiff has intentionally withheld information that may have 7 disqualified plaintiff from obtaining IFP status or has otherwise manipulated his finances 8 to make it appear that a plaintiff is poorer than he actually is[.]”); Tuck v. Capitol One 9 Bank, Case No.: 3:17-cv-01555-BEN-AGS, 2017 WL 6547739, at *3 (S.D. Cal. Dec. 20, 10 2017) (“[E]ven if Plaintiff’s Amended IFP Application, viewed in isolation, might 11 otherwise justify allowing him to proceed IFP, IFP ‘status is a privilege with may be denied 12 when abused.’” (quoting Toodle v. Jones, 02:09-CV-0944, 2009 WL 2230704, at *1 (W.D. 13 Pa. July 23, 2009))). The Court reminds Plaintiff that he signed the First and Second Form 14 Affidavits and Request for Counsel under penalty of perjury that they are true and correct 15 (ECF Nos. 2 at 1; 2-1 at 3; 3 at 7) and will likewise sign any renewed IFP motion under 16 penalty of perjury. See Tuck, 2017 WL 6547739, at *3 (“Plaintiff is further remined that 17 an IFP application is made under penalty of perjury, and any false statements may result in 18 a dismissal of claims . . . .”). 19 REQUEST FOR APPOINTMENT OF COUNSEL PURSUANT TO 20 42 U.S.C. § 2000e-5(f)(1) 21 I. Legal Standard 22 “[T]here is no constitutional right to counsel in a civil case.” Adir Int’l, LLC v. Starr 23 Indem. & Liab. Co., 994 F.3d 1032, 1038–39 (9th Cir. 2021). Although Congress has 24 specifically authorized district courts to appoint counsel for plaintiffs who, as Plaintiff 25

26 3 Not only did Plaintiff sign the Second Form Affidavit “under penalty of perjury,” 27 but with an “understand[ing] that a false statement . . . may result in the dismissal of [his] 28 claims.” (ECF No. 2-1 at 3.) 1 seemingly is here, proceed under Title VII, see 42 U.S.C. § 2000e-5(f)(1), the court’s 2 “discretion under § 2000e-5(f)(1) in determining whether counsel should be appointed is 3 broad.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). “Three 4 factors are relevant to the [district] court’s determination whether to appoint counsel [under 5 § 2000e-5(f)(1)]: (1) the plaintiff’s financial resources; (2) the efforts made by the plaintiff 6 to secure counsel on his own; and (3) the meritoriousness of plaintiff’s claim.” Id. 7 II. Discussion 8 After considering the three factors identified in Ivey, the Complaint, and the filings 9 before the Court, the Court finds that appointment of counsel is not warranted pursuant to 10 § 2000e-5(f)(1) at this time. First, Plaintiff has not demonstrated that he is financially 11 unable to retain an attorney. As discussed above, Plaintiff’s Request for Counsel and 12 affidavits made in support of his request to proceed IFP provide an incomplete depiction 13 of his financial status. Although leave to proceed IFP “requires a greater showing of 14 indigency than is required for appointment of counsel,” Ivey, 673 F.2d at 269, Plaintiff has 15 not demonstrated with any certainty that he is unable to afford counsel. Notably, Plaintiff 16 attests in the Second Form Affidavit that he has received money from “other sources” in 17 the past twelve months but does not disclose the amount of money he has received, whether 18 he will continue to receive it, or its source. (ECF No. 2-1 ¶ 3.) Plaintiff also attests to 19 owning a home and two vehicles and has a monthly expense budget of $3,000–$4,000. 20 (See ECF No. 3. ¶ 8.C.ii.) 21 Second, Plaintiff attests that he has contacted only a single law firm—Shegerian & 22 Associates—about representing him in this action, once on August 23, 2018, and again, 23 exactly three years later, on August 23, 2021. (Id. ¶ 4.) Although Plaintiff has expended 24

25 26 4 42 U.S.C. § 2000e-5(f)(1) states in pertinent part that: “[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint 27 an attorney for such complainant and may authorize the commencement of the action 28 without the payment of fees, costs, or security.” 1 some effort to retain counsel, he has not diligently endeavored to do so. Cf. Ivey, 673 F.2d 2 at 269 (“The record also reveals that plaintiff contacted ten attorneys who refused to handle 3 the case, thus demonstrating that he was unable to secure counsel for appointment.”). 4 Moreover, in the Complaint, Plaintiff seems to allege that, at one point in time, Shegerian 5 & Associates agreed to represent him. (See, e.g., ECF No. 1 at 24–25 (“Shegerian & 6 Associates [r]etainer agreement via email. Plaintiff signed it returned via email. . . . 7 Plaintiff Robert Blackshire Jr[.] was harmed by [c]o-conspirator defendant Shegerian & 8 Associates . . . left Plaintiff without representation abandonment.”). 9 And finally, Plaintiff has not demonstrated that the claims in his Complaint have 10 merit. In his Request for Counsel, Plaintiff provides only a single conclusory statement 11 that he has “a good case,” but does not otherwise address the merits of his claims. (Id. 12 ¶ 1.A.) Additionally, after its own review of the Complaint, the Court is not that Plaintiff’s 13 claims have sufficient merit to warrant appointment of counsel, especially when Plaintiff 14 has neither demonstrated that he is unable to afford counsel nor that he has made a 15 reasonable effort to retain counsel. 16 III. Conclusion 17 Plaintiff fails to demonstrate that he is unable to afford counsel, that he has diligently 18 endeavored to obtain counsel, or that his claims have sufficient merit to warrant 19 appointment of counsel. Accordingly, the Court DENIES Plaintiff’s request for 20 appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f)(1) without prejudice. 21 CONCLUSION 22 For the foregoing reasons, the Court DENIES Plaintiff’s request for leave to proceed 23 IFP (ECF Nos. 2; 2-1) and request for appointment of counsel pursuant to 42 U.S.C. § 24 2000e-5(f)(1) (ECF No. 3) without prejudice. No later than twenty-one days from the date 25 of this Order, Plaintiff shall either: (1) pay the $402 filing fee required to maintain an action 26 is this District; or (2) file a renewed motion to proceed IFP that accounts for the 27 discrepancies identified by the Court and demonstrates that Plaintiff is not abusing the IFP 28 /// 1 || process. Plaintiff is hereby on notice that if he fails to pay the $402 filing fee or file a 2 ||renewed IFP motion within twenty-one days from the date of this Order, the Court will 3 dismiss this action without prejudice. 4 IT IS SO ORDERED. 5 ||Dated: January 3, 2022 . tt f te 6 on. Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 5 5 The Court reminds Plaintiff that, should he refile an IFP motion that sufficiently assures the Court that he is entitled to IFP status and is not abusing the IFP process, his 26 ||Complaint will undergo mandatory pre-answer screening pursuant to 28 U.S.C. 17 § 1915(e)(2)(B). Under § 1915(e)(2)(B), the Court must sua sponte dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages 28 defendants who are immune.