Warfield v. Paladin Security

Filing 5

ORDER and ORDER to SHOW CAUSE signed by Magistrate Judge Carolyn K. Delaney on 1/26/2017 GRANTING 2 Motion to Proceed IFP; DENYING 3 Motion to Appoint Counsel; No later than 2/7/2017 plaintiff shall Show Cause why this action should not be dismissed for lack of subject matter jurisdiction. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRODERICK WARFIELD,

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No. 2:17-cv-0129 TLN CKD PS

Plaintiff,
v.

ORDER AND

PALADIN SECURITY,

ORDER TO SHOW CAUSE

Defendant.

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to

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28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by

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Local Rule 302(c)(21).

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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). Plaintiff alleges claims arising out of an interaction he had with a security guard.

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The complaint does not allege a basis for subject matter jurisdiction in this court. The federal

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courts are courts of limited jurisdiction. In the absence of a basis for federal jurisdiction,
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plaintiff’s claims cannot proceed in this venue.1 Because there is no basis for federal subject

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matter jurisdiction evident in the complaint, plaintiff will be ordered to show cause why this

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action should not be dismissed. Failure to allege a proper basis for subject matter jurisdiction will

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result in a recommendation that the action be dismissed.

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Plaintiff also requests appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find

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the required exceptional circumstances. Plaintiff’s request for the appointment of counsel will

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therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted;

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2. Plaintiff’s motion for appointment of counsel (ECF No. 3) is denied; and

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3. No later than February 7, 2017, plaintiff shall show cause why this action should not be

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dismissed for lack of subject matter jurisdiction.

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Dated: January 26, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 warfield0129.ifp.nosmj

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Although plaintiff alleges violations of federal Constitutional provisions, the named defendant
does not appear to be a state actor and thus liability under 42 U.S.C. § 1983 cannot lie.
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