IN UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

_____________________________/

Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. Sec. 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

This determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. S 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9^th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. Hospital Bldg. Co. V. Rex Hosp. Trustes, 425 U.S. 738, 740 (1976). Furthermore, the court must construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

The court finds that plaintiff’s complaint fails to state a claim upon which relief can be granted. The complaint alleges a single federal cause of action for employment discrimination on account of religion under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. Specifically, the complaint alleges that defendants hired plaintiff as a ski instructor but then terminated him during the processing stage of the hiring procedure due to plaintiff’s failure to provide a social security number ("SSN"). According to the complaint, plaintiff informed defendants that he "did not use a SSN due to my religious beliefs as a Christian." (Compl. Par 4.) The complaint alleges plaintiff’s belief that a social security number is the "mark of the beast." (Id. Par 5.)

As the allegations of plaintiff’s complaint recognize, the Ninth Circuit recently address the validity of a virtually identical claim in Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9^th Cir. 1999). The defendant in that case offered the plaintiff a position as a Senior Network Analyst. Sutton, 192 F.3d 826. The plaintiff accepted, but when it came to filling out employment forms the plaintiff told his employer that his religion prevented him from providing a social security number. Id. As the Ninth Circuit explained it: "Plaintiff believes that a social security number is the ‘mark of the beast’ prophesied in the Book of Revelations, Chapters 13 and 14." Id. The defendant refused to hire plaintiff because he would not provide a social security number. Id. At 829-30.

In Sutton the Ninth Circuit affirmed the district court’s dismissal with prejudice of the plaintiff’s Title VII claim pursuant to Federal Rule of Civil procedure 12 (b)(6). In doing so, the court summarized the applicable law as follows:

Sutton, 192 F.3d at 830. It was uncontested in Sutton that the plaintiff had a bona fide religious belief preventing him from providing a social security number, informed his employer of that belief, and was terminated due to his refusal to provide a social security number. Id. Nonetheless, the court in Sutton found the defendant could not be liable under Title VII because Immigration and Naturalization regulations as well as the Internal Revenue Code required employers to provide the social security numbers of their employer. Id. At 830-31. Since accommodating the employee’s religious beliefs would require the employer to violate federal or state law, the court held "that accommodation would cause ‘undue hardship’ as a matter of law." Id. at 831.

The undersigned is bound by the decision in Sutton. Thus, even if plaintiff were able to establish a prima facie case of discrimination, the undersigned finds that accommodating plaintiff’s religious belief would be an undue hardship on defendants as a matter of law. Sutton, 192 F.3d at 830-31; see also Seaworth v. Pearson, 203 F.3d 1056, 1057 (8^th Cir. 2000) ("Requiring defendants to violate the Internal Revenue Code and subject themselves to potential penalties by not providing Seaworth’s social security number on information returns results in undue hardship."), cert. denied, 531 U.S. 895 (2000). For this reason, plaintiff’s complaint must be dismissed.

Plaintiff’s complaint is not saved by its allegation that defendants failed to seek a "reasonable cause waiver" under 26 U.S.C. Sec 6724(a) which provides: "No penalty shall be imposed under this part with respect to any failure if it is shown that such failure is due to reasonable cause and not to willful neglect." The complaint alleges that plaintiff’s religious belief furnishes defendants with the requisite reasonable cause. The undersigned rejects this attempt to plead around a fatal flaw in the complaint. Several courts have expressly rejected the same contention in cases alleging religious discrimination based upon an employer’s response to an employee’s refusal to provide a social security number. See Seaworth, 203 F.3d at 1057 ("Even if a waiver could be obtained, we think that the expense and trouble incident to applying for it imposes a hardship that is more than de minimus, as a matter of law."); Baltgalvis v. Newport News Shipbuilding, Inc., 132 F. Supp. 2d 414, 420 (E.D. Va. 2001) (finding that $50 penalty defendant may face for non-compliance with the Internal Revenue Code and the burden of applying for a waiver each constitute more than a de minimis hardship);1 Equal Employment Opportunity Comm’n v. Allendale Nursing Ctr., 996 F. Supp. 712, 718 (W.D. Mich. 1998) (rejecting a plaintiff’s "attempt[]to transform a section which allows an employer to likely avoid certain penalties if it takes certain steps

1. The "de minimis" standard applied in Seaworth and Baltgalvis is based on Supreme Court authority stating that an accommodation causes undue hardship whenever it results in more than a de minimis cost to an employer. See Ansonia Bd. Of Educ. V. Philbrook, 479 U.S. 60, 67 (1986).

into a requirement that the employer must take these steps in order to accommodate the employee who cause the penalty in the first place"). Because plaintiff can prove no set of facts in support of the sole federal claim that would entitle him to relief, his complaint must be dismissed. Further, the undersigned will recommend that the complaint be dismissed without leave to amend. As set forth above, plaintiff’s federal cause of action is not tenable as a matter of law. Since this defect cannot be cured by amendment, dismissal without leave to amend is appropriate. See Cato v. United States, 70 F.3d 1103, 1111 (9^th Cir. 1995); Albrecht v. Lund, 845 F.d 193, 195 (9^th Cir. 1998), amended by 856 F. 2d 111 (9^th Cir. 1988).

Finally, plaintiff has requested that the court appoint him counsel. In considering that request the court must assess (1) plaintiff’s financial resources, (2) efforts already made by him to secure counsel, and (3) whether plaintiff’s claim has merit. Bradshaw v. Zoological Society of San Diego, 662, F. 2d 1301, 1318 (9^th Cir. 1981). Appointment of counsel is not a matter of right. See Ivey v. Board of Regents, 673 F.2d 266, 269 (9^th Cir. 1982). Because plaintiff is proceeding in forma pauperis in this action, the fist factor is resolved in his favor. On the other hand, plaintiff merely offers in his application that he has contacted "several attorneys" and each was not "available" to represent him. And as explained above, plaintiff’s complaint fails to state a claim. Therefore, the second and third factors are resolved against plaintiff. Plaintiff’s application for appointment of counsel will be denied.

Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that:

1. Plaintiff’s request for leave to proceed in forma pauperis is granted. The Clerk o the Court is directed to file plaintiff’s complaint and open this matter as a civil action, to be referred to hereafter by the case number stamped on page on of this order.

2. Plaintiff’s application for appointment of counsel is denied.

IT IS HEREBY RECOMMENDED that plaintiff’s complaint be dismissed without leave to amend.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. Sec. 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge’s Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the district court’s order. Martinez v. Y1st, 951 F.2d 1153 (9^th Cir. 1991.)

DATED: November _20__, 2002

DAD:th

dad1/orders.prose/hommel.ifp.dismiss