Ingram v. City of San Francisco et al

Filing 12

ORDER DISMISSING PLAINTIFFS AMENDED COMPLAINT WITH PREJUDICE AND DENYING HIS MOTIONS FOR A GUARDIAN AD LITEM AND APPOINTMENT OF COUNSEL (Dkt. Nos. 3, 5, 11). Signed by Magistrate Judge Jacqueline Scott Corley on 8/8/2012. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 8/8/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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CHADERICK A. INGRAM,

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Plaintiff,

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v.

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CITY OF SAN FRANCISCO, et al.,

Case No.: C12-3038 JSC
ORDER DISMISSING PLAINTIFF’S
AMENDED COMPLAINT WITH
PREJUDICE AND DENYING HIS
MOTIONS FOR A GUARDIAN AD
LITEM AND APPOINTMENT OF
COUNSEL (Dkt. Nos. 3, 5, 11)

Defendants.

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Plaintiff, proceeding pro se, brings this 42 U.S.C. §1983 action against the City of San

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Francisco, Fas Trak Violation Processing Department, City of Pittsburgh, Pittsburgh Police

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Department, and Motel 6 “due to their professional misconduct.”1 (Dkt. No. 1 at 1.) He

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previously filed an application to proceed in forma pauperis, which was GRANTED. (Dkt.

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No. 2.) The Court dismissed Plaintiff‟s first complaint for failure to state a claim. (Dkt. No.

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10.) Now pending before the Court is Plaintiff‟s amended complaint (Dkt. No. 11), which

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nearly word-for-word mirrors Plaintiff‟s first complaint. (Dkt. 1.) Plaintiff filed two other

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motions about which the Court withheld judgment while Plaintiff‟s amended complaint was

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Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of a United States
magistrate judge (Dkt. No. 9), and Defendants, not yet served, are not parties to this case. See
Third World Media, LLC v. Does 1-1568, 2011 WL 4344160 *3 (N.D. Cal. Sept. 15, 2011).

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pending: appointment of counsel (Dkt. No. 3) and the appointment of Terrie Ann Wingo as

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his guardian ad litem (Dkt. No. 5). As Plaintiff‟s amended complaint fails to raise a

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meritorious claim for relief, both of these motions are now DENIED.

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As noted previously, under 28 U.S.C. '1915, the Court has a continuing duty to

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dismiss any case in which a party seeks leave to proceed in forma pauperis if the Court

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determines that the action (1) is frivolous or malicious; (2) fails to state a claim on which

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relief may be granted; or (3) seeks monetary relief against a defendant who is immune from

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such relief. 28 U.S.C. ' 1915(e)(2). As Plaintiff‟s amended complaint does not cure the

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defects of his initial pleading, the Court DISMISSES this action with prejudice for failure to

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state a claim.
DISCUSSION

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Northern District of California

United States District Court

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A. Failure to State a Claim

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A complaint fails to state a claim upon which relief may be granted if Plaintiff does not

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allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007) (quotation omitted). Essentially, a plaintiff must plead “factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Under 42 U.S.C. §

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1983, any person “under color of any statute, ordinance, regulation, custom, or usage, of any

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State . . . [who] subjects, or causes to be subjected, any citizen of the United States or other

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person within the jurisdiction thereof to the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws, shall be liable to the party injured in an

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action at law, suit in equity, or other proper proceeding for redress.”

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To state a claim under § 1983, a complaint “must both (1) allege the deprivation of a

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right secured by the federal Constitution or statutory law, and (2) allege that the deprivation

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was committed by a person acting under color of state law.” Anderson v. Warner, 451 F.3d

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1063, 1067 (9th Cir. 2006). In the Order dismissing Plaintiff‟s first complaint, the Court

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noted that Plaintiff failed to establish that any defendant was a state actor or acting under the

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color of state law and that an amended complaint must therefore “state who Plaintiff is

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accusing of what particular conduct and why that conduct establishes the cause of action

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Plaintiff asserts.” (Dkt. No. 10.) Plaintiff‟s amended complaint fails to follow this instruction.

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No additional facts are provided; in fact, other than slightly different verbiage on certain

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pages, the amended complaint is virtually identical to Plaintiff‟s initial pleading. The biggest

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difference is that Plaintiff previously sought $211,000,000,000,000,000,000,000,000 in

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damages and now seeks $999,999,999, 999, 999, 999,999,999, 999. (Dkt. Nos. 1 at 19, 11 at

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because he does not articulate either that he was deprived “of a right secured by the federal

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Constitution or statutory law” or that any Defendants were “acting under the color of state

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law” in causing such a deprivation. See Fed. R. Civ. P. 12(b)(6). Consequently, Plaintiff‟s

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Northern District of California

Plaintiff‟s amended complaint fails to state a claim for which relief can be granted

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United States District Court

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claims are DISMISSED with prejudice.

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B. Appointment of Counsel

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Plaintiff requests the appointment of counsel. (Dkt. No. 3.) “[T]he appointment of

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counsel in a civil case is . . . a privilege and not a right.” Gardner v. Madden, 352 F.2d 792,

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793 (9th Cir. 1965); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)( stating that

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“[g]enerally a person has no right to counsel in civil actions”). The Court “may under

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„exceptional circumstances‟ appoint counsel for indigent civil litigants pursuant to 28 U.S.C. §

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1915(e)(1).” Palmer, 560 F.3d at 970 (citation omitted). To determine whether “exceptional

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circumstances” are present, the “court must evaluate the likelihood of success on the merits as

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well as the ability of the petitioner to articulate his claims pro se in light of the complexity of

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the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Plaintiff has

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not demonstrated a likelihood of success on the merits or that this failure is due to either his

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difficulty articulating claims as a pro se litigant or the complexity of the legal issues involved.

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This request is DENIED.

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C. Guardian Ad Litem

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Plaintiff alleges he is mentally incompetent and requests that his friend Terrie Ann

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Wingo be appointed to serve as his guardian ad litem in this action. (Dkt. No. 5.) “In

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California, a party is incompetent if he or she lacks the capacity to understand the nature or

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consequences of the proceeding, or is unable to assist counsel in the preparation of the case,”

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and a party can be found “incompetent only if a preponderance of the evidence supports such

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a finding.” Elder-Evins v. Casey, 2012 WL 2577589 *2 (N.D. Cal. July 3, 2012).

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Pursuant to Federal Rule of Civil Procedure 17(c), a mentally incompetent party cannot

previous cases, Plaintiff also requested Terrie Ann Wingo be appointed as his guardian ad

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litem, and both requests were denied because Wingo is not an attorney. Case No. 12-1934

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(NC), Dkt. No. 18 at 7; Case No. 12-1929 (NC), Dkt. No. 20 at 7. The right to represent

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oneself pro se “is personal to the litigant and does not extend to other parties or entities.”

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Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). Thus, Wingo cannot serve as

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Northern District of California

proceed on his own behalf without the appointment of a guardian ad litem. In two unrelated

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United States District Court

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Plaintiff‟s guardian ad litem without retaining an attorney herself. See Johns v. County of San

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Diego, 114 F.3d 874, 877 (9th Cir. 1997) (stating that a parent or guardian must retain an

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attorney before bringing an action on behalf of a minor). “While persons deemed incompetent

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litigants may have potentially meritorious claims and therefore warrant the appointment of a

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guardian ad litem,” Plaintiff‟s previous claims were found “frivolous and not worthy of

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appointment of a guardian ad litem.” Case No. 12-1929 (NC), Dkt. No. 20 at 7. As written,

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Plaintiff‟s current complaint likewise fails to raise meritorious claims, and no evidence has

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been presented that Ms. Wingo has retained an attorney for this action. Consequently,

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Plaintiff‟s request for the appointment of Ms. Wingo as his guardian ad litem is DENIED.

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CONCLUSION
Plaintiff‟s claims do not cite specific conduct by a specific Defendant acting under the

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color of state law as required for a sufficient § 1983 pleading. “Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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129 S.Ct. at 1949. Since Plaintiff‟s amended complaint is essentially identical to his first

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complaint, the Court concludes that Plaintiff is unable to cure the defects in his pleading.

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Leave to amend may be denied “where the amendment would be futile.” Gardner v. Martino,

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563 F.3d 981, 990 (9th Cir. 2009); see also Semiconductor Energy Laboratory Co., Ltd. v.

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Yujurio Nagata, 2012 WL 177557 *8 n.6 (N.D. Cal. Jan. 23, 2012)(finding that further

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amendment can be denied as futile, particularly when a plaintiff has already amended the

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complaint once). Consequently, this action is DISMISSED with prejudice. Plaintiff‟s

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motions for appointment of counsel and a guardian ad litem are DENIED.

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IT IS SO ORDERED.
Dated: August 8, 2012

_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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Northern District of California

United States District Court

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