Snow v. St. Francis Manor, Inc. et al

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 5/15/2015 ORDERING that Plaintiff's 2 Application to Proceed IFP is GRANTED. Plaintiff's 3 Motion to Appoint Counsel is DENIED. Plaintiff's 1 Complaint is DISMISSED. Plaintiff is GRANTED thirty days from the date of service of this order to file an amended complaint. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAROL SNOW,

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Plaintiff,

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No. 2:15-cv-00973-KJM-AC

v.

ORDER

ST. FRANCIS MANOR, INC., et al.,

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Defendants.

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Plaintiff, proceeding in this action pro se, has requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis. Plaintiff has also filed a motion requesting that the court

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appoint her counsel pursuant to 42 U.S.C. § 3613(b)(1). This proceeding was referred to this

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court by Local Rule 72-302(c)(21).

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I.

Motion to Proceed in Forma Pauperis
Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable

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to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding,

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467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45–46 (1957)); Palmer v.

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Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

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complaint under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The court has determined that the complaint, which is more than 100 pages long and

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contains references to dozens of statutes and regulations, does not contain a short and plain

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statement as required by Federal Rule of Civil Procedure 8(a)(2). Although the Federal Rules

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adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the

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claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.

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1984). Because plaintiff has failed to comply with the requirements of Federal Rule of Civil

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Procedure 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file

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an amended complaint.

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Plaintiff is cautioned that if she chooses to file an amended complaint, she must submit a

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short and plain statement in accordance with Federal Rule 8(a) pointing to some cognizable legal

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theory that entitles her to relief. Any amended complaint must also show that the federal court

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has jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if her

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allegations are true. The amended complaint should contain separately numbered, clearly

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identified claims.
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In addition, the allegations of the complaint must be set forth in sequentially numbered

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paragraphs, with each paragraph number being one greater than the one before, each paragraph

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having its own number, and no paragraph number being repeated anywhere in the complaint.

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Each paragraph should be limited “to a single set of circumstances” where possible. Fed. R. Civ.

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P. 10(b). Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

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narrative and storytelling. That is, the complaint should not include every detail of what

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happened, nor recount the details of conversations (unless necessary to establish the claim), nor

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give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should

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contain only those facts needed to show how the defendant legally wronged the plaintiff.

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Local Rule 15-220 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

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plaintiff files an amended complaint, the original pleading no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.

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II.

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Motion Requesting that the Court Appoint Plaintiff Counsel
The court also declines to appoint plaintiff counsel pursuant to 42 U.S.C. § 3613(b)(1).

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Section 3613(b) provides that “[u]pon application by a person alleging a discriminatory housing

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practice or a person against whom such a practice is alleged, the court may . . . appoint an

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attorney for such person.” There is no Ninth Circuit case law interpreting appointment of counsel

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pursuant to 42 U.S.C. § 3613(b). As a result, the court looks to the case law addressing 42 U.S.C.

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§ 2000e–5, which permits the appointment of counsel in Title VII employment discrimination

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cases, for guidance in applying the provisions of 42 U.S.C. § 3613(b). See 42 U.S.C. § 2000e–5

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(“Upon application by the complainant and in such circumstances as the court may deem just, the

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court may appoint an attorney for such complainant.”).

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Under Title VII, three factors are relevant to a district court's determination of whether to

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appoint counsel: “(1) the plaintiff's financial resources; (2) the efforts made by the plaintiff to

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secure counsel on his or her own; and (3) the merit of the plaintiff's claim.” Bradshaw v.

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Zoological Soc. of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981). In cases where the particular

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facts warrant, other factors may be taken into account by the district courts, “so long as they are

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treated in a manner consistent with the policy of the statutory provision.” Id. at 1318 n.43 (9th

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Cir. 1981). For example, several circuits consider as a fourth factor the plaintiff's capacity to

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prepare and present the case without the aid of counsel. See, e.g., Castner v. Colorado Springs

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Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992); Hunter v. Dep’t of Air Force Agency,

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846 F.2d 1314, 1317 (11th Cir. 1988); Poindexter v. FBI, 737 F.2d 1173, 1185 (D.C. Cir. 1984);

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Jenkins v. Chem. Bank, 721 F.2d 876, 880 (2d Cir. 1983); Hudak v. Curators of Univ. of Mo.,

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586 F.2d 105, 106 (8th Cir. 1978). The determination of whether to appoint counsel “is left to the

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sound discretion of the district court.” Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th

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Cir. 1991).

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Plaintiff’s motion to proceed in forma pauperis establishes that her financial resources are

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limited. However, plaintiff does not explain what she has done on her own in order to secure

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counsel. Although plaintiff’s lack of resources indicates she probably cannot afford to pay for

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counsel, she must make some effort, at least, to obtain pro bono counsel. In addition, plaintiff’s

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claims are not meritorious as her complaint does not comply with Rule 8. Accordingly, the court

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will deny plaintiff’s motion requesting that the court appoint her counsel.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is GRANTED;

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2. Plaintiff’s motion requesting that the court appoint her counsel, ECF No. 3, is

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DENIED;

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3. Plaintiff's complaint, ECF No. 1, is dismissed; and

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case

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and must be labeled “First Amended Complaint”; plaintiff must file an original and two copies of

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the amended complaint; failure to file an amended complaint in accordance with this order will

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result in a recommendation that this action be dismissed.

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DATED: May 15, 2015

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