Barnett v. Becerra et al

Filing 5

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT WITH LEAVE TO AMEND, AND DENYING MOTION FOR APPOINTMENT OF COUNSEL 2 3 . (Illston, Susan) (Filed on 10/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MELISSA BARNETT,

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Plaintiff,
v.

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XAVIER BECERRA, et al.,
Defendants.

United States District Court
Northern District of California

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Case No. 17-cv-05514-SI
ORDER DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT WITH
LEAVE TO AMEND, AND DENYING
MOTION FOR APPOINTMENT OF
COUNSEL
Re: Dkt. Nos. 2, 3

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On September 22, 2017, plaintiff Melissa Barnett filed a complaint and a motion for leave

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to proceed in forma pauperis. Dkt. Nos. 1, 2. Plaintiff, who is representing herself pro se, also

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filed a motion for appointment of counsel. Dkt. No. 3. The Court rules as follows.

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I.

Application to Proceed In Forma Pauperis

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28 U.S.C. § 1915(a) authorizes the Court to permit the filing of a lawsuit, without

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prepayment of the filing fees, by a person who submits an affidavit showing that she is unable to

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pay the fees.

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Plaintiff’s application to proceed in forma pauperis (IFP) is denied as incomplete.

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Specifically, plaintiff has not completed: Question 1 (which asks an applicant who is unemployed

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to state the date of last employment and the gross and net salary and wages per month of that job);

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Question 2; Question 6; and Question 8. Plaintiff must re-submit a complete IFP application

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or pay the filing fee no later than October 27, 2017.

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//

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//

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II.

Dismissal of Complaint with Leave to Amend
Notwithstanding the incomplete nature of the IFP application, the Court further finds that it

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is appropriate to dismiss the complaint with leave to amend. The statute that authorizes courts to

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allow lawsuits to proceed without prepayment of the filing fees also requires the Court to “dismiss

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the case at any time if the court determines that – . . . the action or appeal – (i) is frivolous or

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malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

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against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). For purposes of

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28 U.S.C. § 1915, a frivolous claim is one that lacks an arguable basis in either law or fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989). To state a claim for relief, the complaint must

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contain “a short and plain statement showing that the pleader is entitled to relief[.]” Fed. R. Civ.

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United States District Court
Northern District of California

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P. 8(a)(2). The plaintiff must allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).1

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In this case, plaintiff is suing twenty-four different defendants, including California State

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Attorney General Xavier Becerra, the Chief Justice of the California Supreme Court Tani Cantil-

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Sakauye, numerous judges of the Superior Court of Napa County, the president and CEO of St.

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Helena Hospital, the Police Chief of the St. Helena Police Department, and the Superintendent of

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the St. Helena Unified School District, among others. Compl. at 4-11. She sues on behalf of

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herself and her minor child “S,” “each a qualified individual with a mental health disability. Id. at

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2, 4.

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Plaintiffs’ disabilities; and failed to individually analyze what services and supports would be

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appropriate considering those disabilities.

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individualized treatment and accommodations necessary to ensure that Plaintiffs had full and equal

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opportunity to court proceedings to which Melissa Barnett’s parental rights and child’s custody

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were at issue.” Id. at 2. Plaintiff brings two causes of action. The first is for violation of Titles II

Plaintiff alleges: “Defendants acted on assumptions and sex-based stereotypes about

Defendants refused to provide appropriate

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“The standard for determining whether a plaintiff has failed to state a claim upon which
relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure
12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012) (citation omitted).
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and III of the Americans with Disabilities Act. Id. at 20. The second is for violation of Section

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504 of the Rehabilitation Act. Id. at 27.
It is unclear to the Court exactly what conduct or events are at issue in this lawsuit and

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how each of the defendants was involved. Plaintiff refers to “a dissolution by trial” in 2006 that

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resulted in her receiving child support and primary physical custody of S. Compl. at 13. Later in

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the complaint, plaintiff states that she seeks as a remedy “the restoration of Plaintiff child to

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Plaintiff mother, per enforcement of the JOD.” Id. at 22. The Court cannot discern whether

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plaintiff is asking that the Court restore her child “S” to plaintiff’s custody, or if she is referring to

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a different child, or when plaintiff lost custody of her child. 2 Plaintiff appears to be challenging

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state court proceedings, but it is unclear when the court proceedings occurred or what type of

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United States District Court
Northern District of California

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proceedings these were. The complaint refers repeatedly to court proceedings “from 2005 to

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present” or events occurring “in 12 years.” Compl. at 16-18. Plaintiff has not alleged “enough

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facts to state a claim to relief that is plausible on its face.” See 28 U.S.C. § 1915(e)(2)(B)(ii);

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Twombly, 550 U.S. at 570.

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Additionally, it appears that at least some of the defendants may be immune from the relief

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that plaintiff seeks. See 28 U.S.C. § 1915(e)(2)(B)(iii). In the Prayer for Relief, plaintiff seeks,

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among other things, compensatory and punitive damages in the amount of $1.44 million to each

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plaintiff. Compl. at 31. A state judge is absolutely immune from civil liability for damages for

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acts performed in his or her judicial capacity, however. See Pierson v. Ray, 386 U.S. 547, 553-55

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(1967). Judicial immunity is an immunity from suit for damages, not just from an ultimate

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assessment of damages. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Plaintiff states in the

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complaint, “A Judge is not immune for tortious acts committed in a purely Administrative, non-

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judicial capacity.” Compl. at 27. Even so, the Court does not know whether plaintiff is suing the

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judges here for administrative acts or judicial acts or any other kinds of acts, because the

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complaint does not provide enough factual allegations about what plaintiff claims the defendants

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Plaintiff’s complaint, although brought on behalf of herself and her minor child “S” also
refers in Count 1 to plaintiff’s need for treatment and accommodations in “court proceedings
concerning her parental rights and the custody of her minor children D and G[.]” Compl. at 20. It
is further unclear to the Court what “JOD” refers to.
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each did.

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The complaint contains many paragraphs of legal argument as well as references to laws

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that the plaintiff is not suing under (such as the Health Insurance Portability and Accountability

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Act of 1996, the Fourth Amendment, and the Fifth Amendment). In her amended complaint,

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plaintiff must focus on the facts, rather than on legal argument. This should include concise, clear

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statements of the unlawful actions that plaintiff alleges occurred, timelines for when these events

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happened, and information about which defendants committed the acts.
In amending her complaint, plaintiff may find it useful to contact the Legal Help Center, a

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free service offered by the Justice & Diversity Center of the Bar Association of San Francisco.

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Help Centers are located at the San Francisco and Oakland Courthouses and assistance is available

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United States District Court
Northern District of California

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by appointment. The San Francisco Help Desk is located at 450 Golden Gate Ave., 15th Floor,

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Room 2796, San Francisco, CA 94102. The Oakland Help Desk is located at 1301 Clay Street,

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4th Floor, Room 470S Oakland, CA 94612. To make an appointment, call: [phone]. See

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also https://www.cand.uscourts.gov/legal-help.
Plaintiff must file her amended complaint no later than October 27, 2017.

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III.

Motion for Appointment of Counsel

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Finally, plaintiff’s motion for appointment of counsel is DENIED without prejudice to

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refiling in the future. A court “may request an attorney to represent any person unable to afford

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counsel.” 28 U.S.C. § 1915(e)(1). However, the decision to request counsel to represent an

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indigent litigant under § 1915 is within “the sound discretion of the trial court and is granted only

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in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A

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finding of the “exceptional circumstances” of the plaintiff seeking assistance requires an

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evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the

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plaintiff’s ability to articulate his claims pro se in light of the complexity of the legal issues

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involved. See Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Both

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of these factors must be viewed together before reaching a decision on a request for counsel under

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§ 1915. See id. Neither the need for discovery, nor the fact that the pro se litigant would be better
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served with the assistance of counsel, necessarily qualify the issues involved as complex. See

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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The Court will not consider a request for appointment of counsel until there is a complaint

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on file that meets the basic requirements set out in this Order, i.e. a complaint that sets out the

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facts describing what events plaintiff is challenging as unlawful, when the events occurred, and

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which defendants are alleged to have committed the acts.

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demonstrated a likelihood of success on the merits. Further, the lack of factual allegations in the

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complaint makes it impossible for the Court to determine whether the case involves complex legal

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issues.

At this point, plaintiff has not

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CONCLUSION

United States District Court
Northern District of California

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The IFP application is DENIED without prejudice as incomplete. Plaintiff’s complaint is

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DISMISSED with leave to amend. Plaintiff’s motion for appointment of counsel is DENIED

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without prejudice. Plaintiff may wish to seek free information from the Legal Help Center by

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calling [phone].

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Plaintiff must re-submit a complete IFP application or pay the filing fee no later than

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October 27, 2017. Plaintiff must also file an amended complaint that complies with this

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Order no later than October 27, 2017.

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IT IS SO ORDERED.
Dated: October 6, 2017
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SUSAN ILLSTON
United States District Judge

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