Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1988)

MEMORANDUM^** 

Bruce Wayne Pizano ("Pizano") appeals pro se the district court's order denying his request for appointed counsel and dismissing with prejudice his claims under the Civil Rights Acts of 1866 and 1871. We affirm and remand.

* Pizano was employed as a mail-handler with the United States Postal Service ("Postal Service"), until November 3, 1987, when he was notified of his termination. The Postal Service claimed that he was removed because of his insubordinate behavior.

Immediately following his termination, Pizano filed a grievance petition with the Postal Service, which was denied. He then filed a complaint with the Postal Service's Equal Employment Opportunity ("EEO") office, alleging that he was terminated because of his mental handicap, post-traumatic stress disorder, which he developed as a result of his experience in the Vietnam war. This complaint was denied. The EEO office found his claim of discrimination to be without substance.

Next, Pizano filed an employment discrimination suit against the Postal Service in the United States District Court. He sought relief under the Civil Rights Acts of 1964, 1866, and 1871. The district court issued an order in which it denied without prejudice Pizano's request to be appointed counsel pursuant to the Civil Rights Act of 1964; the court also dismissed with prejudice the actions brought pursuant to the Civil Rights Acts of 1866 and 1871. Pizano appeals the district court order.

II

In connection with his claim under the Civil Rights Act of 1964, Pizano petitioned the district court to proceed in forma pauperis and to be appointed counsel. The court granted the former request and denied the latter. Therefore, for this part of the discussion, we are concerned only with the ruling to deny the appointment of counsel. We have jurisdiction under 28 U.S.C. § 1291 to address the denial of appointed counsel. See Bradshaw v. Zoological Soc'y. of San Diego, 662 F.2d 1301 (9th Cir. 1981); Sours v. Norris, 782 F.2d 106 (8th Cir. 1986). Our review is for an abuse of discretion. Bradshaw, 662 F.2d at 1318.

The district court applied the standard set forth in Bradshaw in determining Pizano's eligibility for appointed counsel. In Bradshaw we established a three-part inquiry to guide the lower courts in making this determination. The district court must consider: "(1) the plaintiff's financial resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether the plaintiff's claim has merit." Id. at 1318. In the present case, the district court found Pizano to have satisfied the first two parts of the inquiry. However, because Pizano's claim was found to have lacked merit for purposes of the Bradshaw test, he was denied appointed counsel.

The district court properly inquired whether the record provided substantial support for the EEO office's determination that Pizano's termination was unrelated to his alleged handicap. District Court Order, Pizano v. United States Postal Service, D.C. No. CV-88-20278-WAI, at 6-7 (July 8, 1988). The district court weighed the evidence supporting and refuting Pizano's claim of discrimination and found that he was not entitled to appointed counsel. The evidence presented by Pizano did not raise strong suspicions that an improper motivation animated his removal; instead, it appeared that legitimate reasons prompted his dismissal. As the district court noted, Pizano had been formally reprimanded on several occasions prior to being terminated: " [A] letter to plaintiff notifying him of his proposed removal indicates that he was suspended in 1987 and in 1985 for absence without official leave; that he was issued a letter of warning in 1985 for disrespectful behavior towards a superior; and that he was suspended in 1984 for unofficial use of official property." The Postal Service considered these past incidents along with the present act of insubordination in deciding to terminate Pizano.

After reviewing the district court's analysis, we are unable to conclude that it abused its discretion in denying Pizano appointed counsel. It was not error to find that Pizano's claim lacked merit under Bradshaw. Consequently, Pizano must pursue his lawsuit without the aid of appointed counsel.

II

The district court dismissed with prejudice Pizano's claims under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Pizano seeks to appeal this ruling.

The dismissal of Pizano's claims is not a final judgment. See Fed. R. Civ. P. 54(b); In re King City Transmit Mix, Inc., 738 F.2d 1065, 1066 (9th Cir. 1984). Therefore, we do not have jurisdiction over the dismissal and do not reach the merits.

III

In his brief, Pizano also notes that he wishes to bring actions under the Federal Tort Claims Act, 28 U.S.C. § 2671, and the Rehabilitation Act, 29 U.S.C. § 791. These claims must be pursued before the district court.

IV

Our review has been limited to the district court's order denying the appointment of counsel, which we affirm. The district court did not dismiss Pizano's complaint. We therefore remand this case back to the district court for further proceedings consistent with this memorandum disposition.

AFFIRMED and REMANDED.