Opinion
C24-5398 BHS
06-20-2024
BRIAN REINKE, Plaintiff, v. ROB TERNUS, et al., Defendants.
ORDER
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on pro se plaintiff Brian Reinke's motion to appoint counsel, Dkt. 5. Magistrate Judge Fricke has granted Reinke in forma pauperis status based on his indigency, though she did not screen his complaint. Dkt. 3.
Reinke alleges that he was falsely arrested and unlawfully imprisoned in October 2022. He claims he had “zero obligation to provide his ID” and that there was “no evidence supporting the charges of burglary and DV.” Dkt. 4 at 7.
Reinke now asks the Court to appoint an attorney to represent him pro bono. He asserts he has tried to contact attorneys online without success. Reinke reiterates that his rights were violated and seeks various categories of damage for the defendants' violation of his First and Fourth Amendment rights. Dkt. 5. at 4.
A district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The Court has broad discretion in resolving the application, but “the privilege of proceeding in forma pauperis in civil actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). The standard governing in forma pauperis eligibility under 28 U.S.C. § 1915(a)(1) is “unable to pay such fees or give security therefor.” A person is eligible if they are unable to pay the costs of filing and still provide the necessities of life. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 203 (1993) (internal quotations omitted).
Judge Fricke has already determined that Reinke cannot afford the filing fee. Dkt. 3.
In addition, however, a court should “deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.” Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i).
An in forma pauperis complaint is frivolous if it has no arguable substance in law or fact. Id. (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A pro se Plaintiff's complaint is to be construed liberally, but like any other complaint it must nevertheless contain factual assertions sufficient to support a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Ordinarily, the Court will permit pro se litigants an opportunity to amend their complaint to state a plausible claim. See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.”).
There is no constitutional right to counsel for an indigent plaintiff in a civil case unless the plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). However, 28 U.S.C. § 1915(e)(1) gives the Court discretion to appoint counsel for indigent litigants who are proceeding in forma pauperis. United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
The Court will appoint counsel under only “exceptional circumstances.” Id. (quoting Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.'” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). These factors must be viewed together before reaching a decision on whether to appoint counsel under § 1915(e)(1). Id.
Reinke has not addressed this standard, and he has not met it. His claims are purely conclusory. He has not articulated the “who what when why and how” of a plausible claim for relief. Reinke has not yet pled a plausible claim for relief; he has simply stated that the defendants violated his rights. That is not enough to obtain in forma pauperis status and avoid paying the filing fee.
Nor has Reinke met the higher standard of demonstrating that he is likely succeed on the merits of his claim, which he must do for this Court to appoint an attorney to represent him at public expense. Reinke's motion for a court-appointed attorney, Dkt. 5, is DENIED.
Further, Reinke is ORDERED to SHOW CAUSE why his in forma pauperis status should not be revoked and his complaint dismissed for failure to state a plausible claim, within 21 days. He may do so by filing an amended complaint alleging a factual narrative that adds up to a plausible claim against each defendant, as described above. What did each defendant do that violated his constitutional rights, in what way? The failure to file such an amended pleading will result in the dismissal of this case without further notice.
IT IS SO ORDERED.