Schwartz v. Tallarico et al

Filing 8

ORDER by Judge Joseph C. Spero DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. § 1915, VACATING CASE MANAGEMENT CONFERENCE, AND DENYING MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE (jcslc1, COURT STAFF) (Filed on 2/28/2014) (Additional attachment(s) added on 2/28/2014: # 1 Certificate/Proof of Service) (klhS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY LEE SCHWARTZ,

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Case No. 14-cv-00368-JCS

Plaintiff,
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v.
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STEVEN TALLARICO, et al.,

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Defendants.

United States District Court
Northern District of California

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND PURSUANT
TO 28 U.S.C. § 1915, VACATING CASE
MANAGEMENT CONFERENCE, AND
DENYING MOTION FOR
APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE
Re: Dkt. No. 6

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I.

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INTRODUCTION
Plaintiff has filed a complaint against Defendant Steven Tallarico. Having previously

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granted Plaintiff’s Application to Proceed in Forma Pauperis, the Court now considers whether

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Plaintiff’s Complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B). The Court also

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addresses Plaintiff’s Motion to Appoint Counsel. For the reasons stated below, the Court

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dismisses Plaintiff’s complaint with leave to amend. The Court vacates the case management

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conference set for April 25, 2014. The Motion to Appoint Counsel is denied without prejudice.1

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II.

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SECTION 1915 REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a federal court should dismiss an in forma pauperis

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complaint that is (1) frivolous or malicious, (2) fails to state a claim on which relief may be

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granted, or (3) seeks monetary relief from a defendant who is immune from such relief. See

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Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). A plaintiff’s burden at the pleading stage is

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Plaintiff has consented to the jurisdiction of a United States magistrate judge pursuant to 28
U.S.C. § 636(c).

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relatively light under Rule 8(a) of the Federal Rules of Civil Procedure. See Fed.R. Civ. P. 8(a)

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(requiring, inter alia, that “[a] pleading that states a claim for relief must contain . . . a short and

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plain statement of the claim showing that the pleader is entitled to relief”). This is particularly

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true of complaints drafted by pro se plaintiffs, which are construed liberally to give the plaintiff

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the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted).

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Nonetheless, the factual allegations of a complaint must be definite enough to “raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). In Ashcroft v. Iqbal, the Supreme

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Court explained that under Twombly, the complaint must allege facts sufficient to “state a claim to
relief that is plausible on its face.” 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly,

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United States District Court
Northern District of California

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550 U.S. 544, 547 (2007)).
Plaintiff’s complaint is handwritten. It alleges, in part, as follows:

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This lawsuit has been decades in the making. The Defendants in
this matter are no strangers to the consequences of fraudulent
business practices. I am respectfully requesting the federal court
system look thoroughly into the situation that has utilized the
potentially corrupt partnerships between big business and their ties
to various aspects of federal government, to time and time again
suppress my constitutional rights as well as civil liberties.

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Complaint at 2. The subsequent allegations in Plaintiff’s complaint do not allege any further

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relevant facts and do not identify any specific claims. Plaintiff’s allegations are too vague and

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conclusory to state any claim under the standard set forth in Twombly and Iqbal. Accordingly, the

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Complaint must be dismissed pursuant to 28 U.S.C. § 1915(e)(2).

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III.

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REQUEST FOR APPOINTMENT OF COUNSEL

Under 28 U.S.C. § 1915(e)(1), the court is authorized to appoint an attorney to represent any

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person unable to afford counsel where there are “exceptional circumstances.” 28 U.S.C §

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1915(e)(1); United States v. Madden, 352 F.2d 792, 794 (9th Cir. 1965). As Plaintiff’s complaint

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fails to state any viable claim the Court does not find that there are exceptional circumstances that

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warrant appointment of counsel at this time. Therefore, Plaintiff’s Motion for Appointment of

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Counsel is DENIED without prejudice.

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IV.

CONCLUSION

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For the foregoing reasons, the Complaint is DISMISSED with leave to amend. Any

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amended complaint must be filed within thirty days of the date of this Order. If an amended

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complaint is not filed, the Clerk is directed to close the file. The Motion to Appoint Counsel is

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DENIED without prejudice.

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Plaintiff is encouraged to contact the Legal Help Center of the Justice & Diversity Center

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of the Bar Association of San Francisco, Room 2796, 15th Floor, 450 Golden Gate Avenue, San

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Francisco, California. Appointments can be made by signing up in the appointment book located

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on the table outside of the door of the Legal Help Center or by calling [phone].

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: February 28, 2014

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______________________________________
JOSEPH C. SPERO
United States Magistrate Judge

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