Jeffries v. FedEx et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
DONALD JEFFRIES,
Plaintiff,
v.
FEDEX, et al.,
Defendants.
Case No. 23-cv-00358-DKW-KJM
ORDER (1) GRANTING
APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT
PREPAYING FEES OR COSTS, (2)
DIRECTING SERVICE OF THE
COMPLAINT, AND (3) DENYING
AS PREMATURE MOTION FOR
APPOINTMENT OF COUNSEL1
On August 28, 2023, Plaintiff Donald Jeffries, proceeding without counsel,
filed a Complaint alleging civil rights violations arising out of the termination of
his employment by Defendants FedEx, Federal Express, and FDX. 	Dkt. Nos. 1, 7.
Jeffries has also filed an application to proceed in forma pauperis (“IFP
Application”) and a motion for appointment of counsel (“motion”). 	Dkt. Nos. 2-3.
I. 	IFP Application
Federal courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an affidavit that
demonstrates an inability to pay. 	See 28 U.S.C. § 1915(a)(1). 	While
Section 1915(a) does not require a litigant to demonstrate absolute destitution,
1 The Court finds these matters suitable for disposition without a hearing pursuant to Local Rule
7.1(c).
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Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the applicant
must nonetheless show that he is “unable to pay such fees or give security
therefor,” 28 U.S.C. § 1915(a).
Here, Jeffries has made the required showing under Section 1915(a). 	In the
IFP Application, Jeffries states that he receives $200 per month in take-home pay.
Dkt. No. 2 at 1. 	Jeffries further states that, in the past 12 months, he has received
no other income, he has minus $425 in a checking or savings account, and he has
no other assets. 	In light of these figures, Jeffries’ income falls below the poverty
threshold identified by the U.S. Department of Health and Human Services’
(“HHS”) 2023 Poverty Guidelines. 	See HHS Poverty Guidelines, available at:
https://aspe.hhs.gov/poverty-guidelines. 	In addition, Jeffries has insufficient
assets to provide security for the $400 filing fee. 	As a result, the Court GRANTS
the IFP Application, Dkt. No. 2.
II. 	Service2
To facilitate service, the Court ORDERS as follows:
2 The Court subjects each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory
screening and can order the dismissal of any claims it finds “frivolous, malicious, failing to state
a claim upon which relief may be granted, or seeking monetary relief from a defendant immune
from such relief.” 	28 U.S.C. § 1915(e)(2)(B). 	At this initial stage of the proceedings, and
without any responsive pleading from Defendants, the Court finds service of the Complaint to be
appropriate.
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1. 	For each of the Defendants,3 the Clerk’s Office is directed to send to
Plaintiff: one copy of the Complaint, Dkt. No. 1; one summons; one
USM-285 form; one Notice of Lawsuit and Request for Waiver of
Service of Summons form (AO 398); two (2) Waiver of Service of
Summons forms (AO 399); an instruction sheet; and a copy of this
Order. 	The Clerk shall also send a copy of this Order to the U.S.
Marshal.
2. 	Should Jeffries choose to use the U.S. Marshal to serve the summons
and Complaint, he shall complete the forms as directed and, for each
of the Defendants, submit the following documents to the U.S.
Marshal in Honolulu, Hawaii: a completed USM-285 form; a copy of
the Complaint; the summons; a completed Notice of Lawsuit and
Request for Waiver of Service of Summons form (AO 398); and two
(2) completed Waiver of Service of Summons forms (AO 399).
3. 	Upon receipt of these documents from Plaintiff, the U.S. Marshal
3 It is not perfectly clear whether, in naming FedEx, Federal Express, and FDX in the caption of
the complaint, Dkt. No. 1 at 1, Jeffries intended to name three distinct entities or, instead,
intended to name just one entity that happens to have at least three different known names, see
Dkt. No. 7-1 at 1. 	For now, in order to be over-inclusive, the Court will assume the former. 	To
the extent that is not the case, Jeffries need only have served the entity or entities he seeks to sue
through this action. 	However, Jeffries should clarify the record going forward if he only seeks
to bring this case against less than the three entities named in the complaint’s caption.
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shall mail to each Defendant: a copy of the Complaint; a completed
Notice of Lawsuit and Request for Waiver of Service form (AO 398);
and two (2) completed Waiver of Service of Summons forms (AO
399), as directed by Plaintiff without payment of costs. 	See
Fed.R.Civ.P. 4(c)(3).
4. 	The U.S. Marshal shall retain the summons and a copy of the
Complaint. 	For each Defendant, the U.S. Marshal shall also file a
returned Waiver of Service of Summons form as well as any Waiver
of Service of Summons form that is returned as undeliverable, as soon
as it is received.
5. 	If a Defendant does not return a Waiver of Service of Summons form
within sixty days from the date that such forms are mailed, the U.S.
Marshal shall:
a. 	Personally serve such Defendant pursuant to Rule 4 of the
Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
b. 	Within ten days after personal service is effected, file the return
of service for such Defendant, along with evidence of any
attempts to secure a waiver of service of summons and of the
costs subsequently incurred in effecting service. 	Said costs
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shall be enumerated on the USM-285 form and shall include the
costs incurred by the U.S. Marshal’s office in photocopying
additional copies of the summons and the Complaint and for
preparing new USM-285 forms, if required. 	Costs of service
will be taxed against the personally served Defendant in
accordance with the provisions of Federal Rule of Civil
Procedure 4(d)(2).
6. 	If Jeffries does not wish to use the U.S. Marshal for service, he may
serve each of the Defendants on his own, in compliance with
Fed.R.Civ.P. 4.
7. 	Jeffries is cautioned that if he fails to comply with this Order and his
non-compliance prevents timely and proper service as set forth in
Federal Rule of Civil Procedure 4(m), this action is subject to
dismissal for failure to serve.
8. 	After service of the summons and Complaint, whether accomplished
on his own or with the services of the U.S. Marshal, Jeffries must
serve on Defendants or their attorneys a copy of all further documents
he submits to the Court. 	The U.S. Marshal is not responsible for
serving these documents on Jeffries’ behalf. 	In addition, Jeffries
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shall include, with any original paper filed with the Clerk of Court, a
certificate stating the date that a copy of the document was served on
Defendants or their counsel, and the manner in which service was
accomplished. 	Any paper received by a District or Magistrate Judge
that has not been filed with the Clerk of Court or that does not include
a certificate of service will be disregarded.
9. 	Jeffries is further notified that he must comply with the Federal Rules
of Civil Procedure and the Local Rules for the District of Hawaii.
III. 	Appointment of Counsel
Jeffries also requests appointment of counsel, stating that his claim is
meritorious, he has made a reasonably diligent effort to obtain counsel, and he is
unable to find an attorney willing to represent him on terms that he can afford.
Dkt. No. 3 at 1.
“The decision to appoint counsel is left to the sound discretion of the district
court.” 	Johnson v. U.S. Treasury Dep’t, 27 F.3d 415, 416 (9th Cir. 1994).
Courts generally consider the following three factors in determining whether to
appoint counsel: “(1) the plaintiff’s financial resources; (2) the efforts made by the
plaintiff to secure counsel on his or her own; and (3) the merit of the plaintiff’s
claim.” 	Id. at 416-417. 	A plaintiff has the burden of persuasion as to all three
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factors, and an unfavorable finding as to any one factor may be fatal to the request.
See Williams v. 24 Hour Fitness USA, Inc., 2014 WL 7404604, at *2 (D. Haw.
Dec. 30, 2014).
Here, at this initial stage of the proceedings, and without any responsive
pleading from Defendants, the record is insufficient for the Court to gauge the
substantive merit of the allegations of the Complaint for purposes of Jeffries’
request for appointment of counsel. 	Therefore, the motion, Dkt. No.3, is DENIED
AS PREMATURE.4
IT IS SO ORDERED.
Dated: August 29, 2023 at Honolulu, Hawai‘i.
4 The Court also notes that, in the motion, although Jeffries states that he has contacted five
attorneys or legal entities, Dkt. No. 3 at 4, he provides no information on the nature of the
contact or the discussions with the individuals or entities listed.
___________________________
Derrick K. Watson
Chief United States District Judge
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