Wingo v. City and County of San Francisco

Filing 18

ORDER by Judge Nathanael M. Cousins Dismissing Complaints; Denying Requests to Proceed In Forma Pauperis; Denying Requests for Appointment of Counsel; Denying Application for Appointment of Guardian Ad Litem. (nclc2, COURT STAFF) (Filed on 6/5/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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CHADERICK A. INGRAM,
Plaintiff,

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v.
CITY OF SAN FRANCISCO, et al.,

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Defendants.

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TERRIE ANNE WINGO,

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Case No. 12-cv-1932 NC
Case No. 12-cv-1934 NC
ORDER DISMISSING
COMPLAINTS FOR FAILURE
TO STATE A CLAIM; DENYING
REQUESTS TO PROCEED IN
FORMA PAUPERIS; DENYING
REQUESTS FOR APPOINTMENT
OF COUNSEL; DENYING
APPLICATION FOR
APPOINTMENT OF GUARDIAN
AD LITEM

Plaintiff,
v.
CITY OF SAN FRANCISCO, et al.,
Defendants.

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Pro se plaintiffs Chaderick Ingram and Terrie Wingo bring these actions against

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the City of San Francisco and the San Francisco Police Department under 42 U.S.C. §

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1983 for alleged violations of their civil rights. All parties have consented to this Court’s

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jurisdiction under 28 U.S.C. § 636(c).

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The Court has before it a number of motions including the City’s motions to

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dismiss plaintiffs’ first amended complaints under Federal Rule of Civil Procedure

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12(b)(6) for failure to state a claim; the City’s motions to dismiss plaintiffs’ second

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amended complaints under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
Case Nos. 12-cv-1932 NC; 12-cv-1934 NC
ORDER DISMISSING CASES

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claim; Ingram’s application for appointment of Wingo as guardian ad litem; and

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plaintiffs’ requests for appointment of counsel. For the sake of judicial economy, the

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Court addresses the claims contained in both complaints at this time, based on the

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motions before it and the Court’s discretion to review in forma pauperis complaints under

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28 U.S.C. § 1915(e)(2).

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Finding that plaintiffs’ complaints (i) fail to state a claim upon which relief can be

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granted and (ii) are frivolous, the Court DISMISSES the complaints under 28 U.S.C. §

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1915(e)(2)(B). Because the Court finds the asserted claims to be frivolous, the Court

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DENIES plaintiffs’ requests for appointment of counsel. Finally, as Wingo is not an

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attorney nor is she represented by an attorney, the Court DENIES Ingram’s request for

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appointment of Wingo as guardian ad litem.

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I. BACKGROUND
A. Factual Allegations Asserted in the Complaints
Pro se plaintiffs Ingram and Wingo allege that they were arrested on August 29,

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2011. See Ingram Second Amended Complaint (“Ingram SAC”) at 4-5, Case No. 12-cv-

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1934, Dkt. No. 11; see also Wingo Second Amended Complaint (“Wingo SAC”) at 2,

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Case No. 12-cv-1932, Dkt. No. 13. Plaintiffs’ complaints are nearly identical except that

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Ingram alleges he was in the backseat of a car “minding his own business” when police

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officers arrested him for “no reason on charges that were later dismissed.” See Ingram

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SAC at 4-5. Wingo alleges that she was in the back seat of a car when an “accident

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happened,” that the police “automatically assum[ed] that she was on probation or parole

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while searching plaintiff[’]s purse,” that police officers approached Wingo with their guns

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drawn, arrested her for no reason, handcuffed her roughly, and incarcerated her “for two

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days for no reason on Geary Street.” Wingo SAC at 2-3.

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Plaintiffs both assert that defendants acted in violation of plaintiffs’ civil rights by

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defaming plaintiffs; using excessive force; unreasonably searching plaintiffs; using

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excessive harassment to detain plaintiffs; unlawfully arresting plaintiffs; falsely

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imprisoning plaintiffs; and violating plaintiffs’ right to assemble. Ingram SAC at 6-8;
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ORDER DISMISSING CASES

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Wingo SAC at 4-9.
Plaintiffs each seek a monetary judgment against defendants–Ingram in the amount

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of $99,900,000,000,000,000,000,000 and Wingo in the amount of

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$514,000,000,000,000,000,000. See Ingram SAC at 10; Wingo SAC at 10.

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B. Procedural History
Ingram and Wingo commenced these 42 U.S.C. § 1983 actions in state court.

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Def.’s Mot. Dismiss SAC at 2, Dkt. No. 13. The City removed these actions to federal

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court on April 19, 2012. See Not. Removal, Dkt. No. 1. The Court then ordered the cases

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related. See Order Relating Case, Case No. 12-cv-1934, Dkt. No. 5

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On April 26, 2012, the City moved to dismiss plaintiffs’ first amended complaints

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under Rule 12(b)(6) for failure to state a claim. See Def.’s Mot. Dismiss FAC, Case No.

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12-cv-1934, Dkt. No. 6; Def.’s Mot. Dismiss FAC, Case No. 8. In response, plaintiffs

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filed second amended complaints, which are essentially duplicative of their first amended

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complaints. See Ingram SAC; see also Wingo SAC. The only substantive differences

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include that (i) both plaintiffs assert that they have been granted leave to proceed in forma

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pauperis (“IFP”);1 (ii) Ingram now asserts that, due to his mental disability, he is unable to

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represent himself; and (iii) Ingram increases his monetary demand from $900 quadrillion

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to $99.9 sextillion. See id.
On May 31, 2012, Ingram filed an application for appointment of guardian ad

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litem requesting the Court name Terrie Wingo as his guadrian ad litem to represent his

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interests as he is “incompetent.” Appl. Appt. Guard. Ad Litem, Case No. 12-cv-01934,

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Dkt. No. 17.

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Plaintiffs both state that they “proceed[] in forma pauperis as order fee waiver
being granted shows on record.” Ingram SAC at 1; Wingo SAC at 1. Neither Ingram nor
Wingo, however, have filed applications to proceed in forma pauperis, and the Court has
not granted any fee waiver in these cases.
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ORDER DISMISSING CASES

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II. STANDARD OF REVIEW

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Under 28 U.S.C. § 1915(a)(1), “any court of the United States may authorize the

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commencement, prosecution or defense of any suit, action or proceeding . . . without

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prepayment of frees or security thereof.” 28 U.S.C. § 1915(a)(1). “Any person wishing

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the Court to authorize prosecution or defense of the action without payment of fees or

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security, pursuant to 28 United States Code § 1915, must submit . . . an Ex Parte Motion

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to Proceed In Forma Pauperis, pursuant to Civil L.R. 7-11.” Civil L.R. 3-10(a).

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Under 28 U.S.C. § 1915(e)(2), the court must dismiss a complaint at any time if

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the court determines that the pleading is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. 28

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U.S.C. § 1915(a). In order to properly state a claim for relief, a complaint must contain

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more than “labels and conclusions”; it must contain factual allegations sufficient to “raise

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a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007).

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A complaint is legally frivolous when it lacks an arguable basis 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,

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1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as

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frivolous where it is based on an indisputably meritless legal theory or where the factual

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contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e) (stating

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that the court “is not bound, as it usually is when making a determination based solely on

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the pleadings, to accept without question the truth of the plaintiff’s allegations.”).
III. DISCUSSION

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A. Motions to Proceed IFP
When a plaintiff moves to proceed IFP, the court first “grants or denies IFP status

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based on the plaintiff’s financial resources alone and then independently determines

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whether to dismiss the complaint” under 28 U.S.C. § 1915(e)(2). Franklin, 745 F.2d at

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1226 n.5.

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Here, plaintiffs each include a sentence in their complaints indicating that
Case Nos. 12-cv-1932 NC; 12-cv-1934 NC
ORDER DISMISSING CASES

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“Plaintiff can[’]t afford an attorney as order fee waiver being granted shows on record.”

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Ingram SAC at 1; Wingo SAC at 1. The Court has never received an application from

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Ingram or Wingo to proceed IFP, and plaintiffs have both failed to submit an affidavit

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which includes a statement of assets as required by § 1915(a). See 28 U.S.C. § 1915(a);

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see also Civil L.R. 3-10(a). Accordingly, the Court finds that plaintiffs do not meet the

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28 U.S.C. § 1915(a) requirements and DENIES plaintiffs’ requests to proceed IFP.

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B. Plaintiffs’ Claims Are Dismissed under 28 U.S.C. § 1915(e)(2).

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The IFP statute provides that a district court shall dismiss a case if at any time the

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court determines the action (1) fails to state a claim on which relief may be granted or (2)

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is frivolous. 28 U.S.C. § 1915(e)(2).

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1. Plaintiffs Fail to Assert Claims Upon Which Relief Can be Granted.

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Under 28 U.S.C. § 1915(e)(2), a court may dismiss the case at any time if it

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determines the plaintiff failed to state a claim on which relief may be granted. Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). “A plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally involved in the

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deprivation of his civil rights.” See Denton, 504 U.S. at 32. A court will deny any

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motion that fails to present a legal and factual basis. Id. In addition, the court need not

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accept as true factual allegations in IFP complaints. Id. (court may reject allegations that

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are “completely baseless” which the court finds “fanciful,” “fantastic” or “delusional.”).

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Here, plaintiffs’ complaints fail to state facts against each defendant who allegedly

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violated their rights. See Ingram SAC; see also Wingo SAC. In their complaints,

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plaintiffs allege, among other things, that defendants “willingly, knowingly, wrongfully,

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and unlawfully harassed plaintiff, through the use of defamation of character while using

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excessive force, not securing his rights depriving his privileges.” Ingram SAC at 3.

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Plaintiffs also contend that defendants “showed no remorse for plaintiff and witness’,

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which is unlawfully wrong due to the fact that plaintiff is not now on probation nor

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parole.” Id. Plaintiffs’ complaints lack sufficient factual allegations to state any

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cognizable claim on which relief can be granted. Accordingly, the Court DISMISSES the
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ORDER DISMISSING CASES

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plaintiffs’ complaints for failure to state a claim under 28 U.S.C. § 1915(e)(2).

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2. Plaintiffs’ Claims Are Also Frivolous.

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An action is “frivolous where it lacks an arguable basis either in law or in fact.”

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Neitzke v. Williams, 490 U.S. 319, 325 (1989). The determination of whether a claim is

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frivolous is within the sound discretion of the district court. Denton, 504 U.S. at 34

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(“[T]he [IFP] statute’s instruction that an action may be dismissed if the court is

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‘satisfied’ that it is frivolous indicates that frivolousness is a decision entrusted to the

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discretion of the court entertaining the in forma pauperis petition.”).

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Here, Ingram and Wingo seek relief from defendants for an alleged wrongful

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arrest. Ingram SAC at 3; Wingo SAC at 2. Plaintiffs’ vague allegations that defendants

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forced plaintiffs to be quiet, harassed, engaged in excessive force, falsely imprisoned, and

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falsely arrested plaintiffs fail to allege specific constitutional or civil rights violations.

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Ingram seeks $99,900,000,000,000,000,000,000 in damages and Wingo seeks

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$514,000,000,000,000,000,000 in damages. Ingram SAC at 10; Wingo SAC at 10. The

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Court finds plaintiff’s amended complaints frivolous as they lacks any basis either in law

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or in fact, and their monetary demand crosses the line into frivolous litigation. See

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Denton, 504 U.S. at 33 (explaining that “a finding of factual frivolousness is appropriate

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when the facts alleged rise to the level of the irrational or wholly incredible.”).

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C. Plaintiffs’ Requests for Appointment of Counsel Are Denied.

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As a general matter, there is no right to counsel in civil actions. Palmer v. Valdez,

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560 F.3d 965, 970 (9th Cir. 2009); see also Gardner v. Madden, 352 F.2d 792, 793 (9th

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Cir. 1965) (noting that the appointment of counsel in civil cases is “a privilege and not a

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right”). Under 28 U.S.C. § 1915(e)(1), however, “[t]he court may request an attorney to

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represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see also Franklin

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v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984) (district court has discretion to designate

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counsel to represent an indigent civil litigant). But the Court may do so only where

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“exceptional circumstances” exist. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101,

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1103 (9th Cir. 2004). In determining whether exceptional circumstances are present, the
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Court must consider a plaintiff’s likelihood of success on the merits and the “complexity

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of the legal issues involved.” Agyeman, 390 F.3d at 1103.

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Here, although plaintiffs may have found it difficult to articulate their claims pro

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se, plaintiffs have neither demonstrated a likelihood of success on the merits nor shown

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that the complexity of the issues involved is sufficient to require designation of counsel.

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See Agyeman, 390 F.3d at 1103. Accordingly, the Court DENIES plaintiffs’ requests for

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appointment of counsel.

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D. Ingram’s Application for Appointment of Wingo as his Guardian is Denied.

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Ingram states in the operative complaint that he is a “documented mentally

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disabled recipient” and reiterates in his application for appointment of guardian ad litem

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that “plaintiff is incompetent.” SAC at 1; Appl. Appt. Guard. Ad Litem. As a mentally

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incompetent litigant, Ingram is unable to proceed on his own behalf. Fed. R. Civ. Proc.

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17(c). Ingram may proceed only after appointment of a guardian ad litem. Id. While

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persons deemed incompetent litigants may have potentially meritorious claims and

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therefore warrant the appointment of a guardian ad litem under Rule 17(c), after review of

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Ingram’s rambling and incoherent complaint, the Court finds the asserted claims to be

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frivolous and not worthy of appointment of guardian ad litem. Moreover, Ingram’s

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application for appointment of Wingo as his guardian ad litem also fails as an individual

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cannot bring an action on behalf of an incompetent litigant without first retaining an

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attorney herself. See Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997)

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(minors must be represented by attorney); see also Meeker v. Kercher, 782 F.2d 153, 154

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(10 Cir. 1986) (“[I]t is not in the interest of minors or incopetents that they be represented

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by non-attorneys.”). As Wingo is unrepresented by counsel, Ingram’s request for

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appointment of Wingo as guardian ad litem is DENIED.

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Case Nos. 12-cv-1932 NC; 12-cv-1934 NC
ORDER DISMISSING CASES

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IV. CONCLUSION

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Because plaintiffs’ complaints are frivolous, devoid of factual support, and fail to

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state a claim upon which relief can be granted, they must be dismissed under 28 U.S.C. §

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1915(e)(2)(B). As further amendment would be futile, the complaints are DISMISSED

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with prejudice. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiffs’

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request to proceed in forma pauperis are DENIED. Ingram’s request for appointment of

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Wingo as his guardian ad litem is DENIED. Plaintiffs’ requests for appointment of

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counsel are also DENIED. The motion to dismiss hearings scheduled for July 11, 2012

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are hereby VACATED.

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IT IS SO ORDERED.

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DATED: June 5, 2012

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___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case Nos. 12-cv-1932 NC; 12-cv-1934 NC
ORDER DISMISSING CASES

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