Opinion
Case No.: 3:17-cv-00156-BEN-NLS
04-05-2017
ORDER:
(1) DENYING MOTION TO PROVIDE PROOF OF SERVICE;
(2) DENYING SECOND MOTION FOR APPOINTMENT OF COUNSEL; and
(3) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM
Plaintiff James Joseph Capers has filed a Motion to Provide Proof of Service and a second Motion for Appointment of Counsel. (Docket Nos. 11, 13.) The Court finds the Motions suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, each Motion is DENIED, and Plaintiff's First Amended Complaint is DISMISSED without prejudice.
I. Motion to Provide Proof of Service
Plaintiff moved for a court order ordering a United States Marshall to serve Defendant. (Docket No. 11.) However, Plaintiff did not state what it wanted the Court to serve on Defendant. Even if the Court assumes Plaintiff seeks to have Defendant served with the First Amended Complaint ("FAC"), Plaintiff's request is moot because Defendant has already appeared by moving for an extension of time to file its answer to the FAC. (Docket No. 8.) Accordingly, Plaintiff's Motion to Provide Proof of Service is DENIED. II. Second Motion for Appointment of Counsel
The Court denied Plaintiff's first request for appointment of counsel for failing to demonstrate a likelihood of success on the merits of her claim. (Docket No. 4.)
Plaintiff's second Motion for Appointment of Counsel asserts Plaintiff should be appointed counsel because Plaintiff is indigent, disabled, and has been unable to retain an attorney. (Docket No. 13 at 1-3.)
As the Court stated in its February 7, 2017 Order (docket no. 4), courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint counsel for indigent civil litigants upon a showing of exceptional circumstances. "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (internal citations omitted). "Neither of these factors is dispositive and both must be viewed together before reaching a decision." Id. (internal citations omitted).
The Court cannot say there is any likelihood of success on the merits of Plaintiff's claims because, as will be explained in further detail below, Plaintiff's FAC fails to state a claim upon which relief may be granted. In addition, Plaintiff does not demonstrate an inability to represent herself beyond the ordinary burdens encountered by plaintiffs representing themselves pro se. See Garcia v. Smith, No. 10-cv-1187, 2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012). Therefore, the Court finds that the exceptional circumstances required for the appointment of counsel are not present. Plaintiff's second Motion for Appointment of Counsel is DENIED.
III. Section 1915 Screening
The Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") (docket no. 4), and must determine whether Plaintiff's FAC sufficiently alleges facts to state a claim for relief. 28 U.S.C. § 1915(e)(2).
A. Legal Standard
Under section 1915(e) of title 28 of the United States Code, the Court must sua sponte dismiss IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)). "[T]he provisions of section 1915(e)(2)(B) are not limited to prisoners." Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001).
Every complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. The "mere possibility of misconduct" falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
While a plaintiff's factual allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts "have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
B. Discussion
Plaintiff's FAC must be dismissed for failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e). The Court previously found Plaintiff's 7-page initial complaint failed to state a claim because it contained "nonsensical and seemingly irrelevant assertions regarding Plaintiff's 'creations and inventions,' groundless accusations of misconduct by 'the government,' and vague conclusions that 'the government' discriminated against him for being transgender." (Docket No. 4 at 4.)
Plaintiff's 48-page FAC has not cured those deficiencies. (Docket No. 5.) Plaintiff's Complaint contains various accusations, state and federal legal definitions, pictures of scientific research, excerpts of alleged contracts, and legal conclusions spanning multiple time frames. Thus, Plaintiff fails to provide "a short and plain statement of the claim showing that the pleader is entitled to relief," and it is unclear whether she has stated any plausible claims for relief. Fed. R. Civ. Proc. 8(a)(2). /// ///
The Court further notes Plaintiff did not provide "a version of the proposed amended pleading that shows-through redlining, underlining, strikeouts, or other similarly effective typographic methods-how the proposed amended pleading differs from the operative pleading," as required by Civil Local Rule 15.1.b.
As a result, the Court must dismiss the FAC for failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). However, the Court grants Plaintiff leave to file a Second Amended Complaint that cures the deficiencies identified above.
CONCLUSION
For the reasons stated above, Plaintiff's Motion to Provide Proof of Service and second Motion for Appointment of Counsel are DENIED. Plaintiff's First Amended Complaint is DISMISSED without prejudice for failing to state a claim. Plaintiff is granted thirty (30) days from the date of this Order to file a second amended complaint ("SAC") that cures the deficiencies identified in this Order. If Plaintiff does not file a SAC, this action shall remain closed without further order of the Court.
IT IS SO ORDERED. DATED: April 5, 2017
/s/_________
HON. ROGER T. BENITEZ
United States District Judge