Silva v. Spencer

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Sua Sponte Dismissing Complaint and Denying 2 Motion for Leave to Proceed In Forma Pauperis and 3 Motion to Appoint Counsel. Signed by Judge Marilyn L. Huff on 7/17/09. (All non-registered users served via U.S. Mail Service).(ag) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In a related case, Plaintiff filed a complaint against the Social Security Administration on August 4, 2008. See Silva v. Social Security Administration, case no. 08-CV-1408-H (LSP). Upon screening, Plaintiff's complaint against the Social Security Administration was dismissed without prejudice. (Case No. 08-CV-1408-H, Doc. No. 4.) Plaintiff was granted leave to amend, but the Court received no further submissions. -108-CV-1686-H (LSP)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
MACHELLE SILVA, vs. LELAND SPENCER, Defendant. Plaintiff, CASE NO. 08cv1686-H (LSP) ORDER SUA SPONTE DISMISSING COMPLAINT and DENYING MOTIONS TO APPOINT COUNSEL AND PROCEED IN FORMA PAUPERIS

On September 15, 2008, Plaintiff Machelle Silva, proceeding pro se, filed a Complaint against Defendant Leland Spencer. (Doc. No. 1.)1 The Complaint alleged, "I, Machelle Silva am disabled and seeking treatment and medical." (Doc. No. 1.) Plaintiff also filed a motion for leave to proceed in forma pauperis and a motion to appoint counsel under 42 U.S.C. § 2000e-5(f)(1). (Doc. Nos. 2 and 3.) The Magistrate Judge filed a Report and Recommendation on October 9, 2008, recommending that this Court dismiss Plaintiff's Complaint. (Doc. No. 5.) Plaintiff filed no Objection to the Report and Recommendation. For the reasons set forth below, the Court sua sponte DISMISSES Plaintiff's Complaint and DENIES Plaintiff's motions to proceed in forma pauperis and to appoint counsel.

1 I. 2

Sua Sponte Screening of an In Forma Pauperis Complaint. Under 28 U.S.C. § 1915(e)(2)(i) and (ii), a district court shall sua sponte dismiss an in

3 forma pauperis complaint if the complaint is frivolous, malicious, or fails to state a claim. The 4 requirement to dismiss an in forma pauperis complaint that fails to state a claim is mandatory. 5 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). Moreover, a court's screening 6 of an in forma pauperis complaint is not limited to prisoners. Calhoun v. Stahl, 254 F.3d 845, 7 845 (9th Cir. 2001). 8

A court must accept as true all allegations of material fact and must construe those facts

9 most favorable to plaintiff when determining if a complaint states a claim. Resnick v. Hayes, 10 213 F.3d 443, 447 (9th Cir. 2000). A complaint fails to state a claim if it lacks a cognizable 11 legal theory or states insufficient facts under a cognizable legal theory. Balistreri v. Pacifica 12 Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 13 F.2d 530, 534 (9th Cir. 1984); see also Fed. R. Civ. P. 12(b). The factual allegations of a 14 complaint must be "enough to raise a right to relief above the speculative level." Bell Atlantic 15 Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). Moreover, plaintiff must plead factual 16 content that allows the court to draw the reasonable inference that the defendant is plausibly 17 liable, not merely possibly liable. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 18

After reviewing Plaintiff's Complaint, the Court concludes that Plaintiff fails to assert

19 proper subject matter jurisdiction and fails to state a claim on which relief may be granted. 20 Plaintiff's Complaint contains one sentence alleging that Plaintiff is disabled and seeking 21 treatment. (Doc. No. 1.) The Complaint fails to meet Fed. R. Civ. P. 8(a) pleading standards, 22 which requires a complaint to contain a short and plain statement of the grounds for the court's 23 jurisdiction, a short and plain statement of the claim showing that the pleader is entitled to 24 relief, and a demand for the relief sought. 25

Plaintiff has not demonstrated that this Court has jurisdiction over the subject matter of

26 the Complaint. See Fed. R. Civ. P. 8(a)(1). Plaintiff lists 42 U.S.C § 205 as grounds for the 27 Complaint, but this section of the United States Code deals with the appointment of the United 28 States Surgeon General and appears to have no relation to the sparse factual pleadings found -2-

08-CV-1686-H (LSP)

1 in the Complaint. (Doc. No. 1.) The Court concludes that, absent a showing of subject matter 2 jurisdiction, the Complaint must be dismissed. See Fed. R. Civ. P. 12(b)(1). 3

Moreover, Plaintiff does not plead facts that raise any right to relief above a speculative

4 level because Plaintiff makes only the conclusory allegation that Plaintiff is disabled and 5 seeking treatment. Plaintiff fails to plead sufficient factual allegations that, if true, demonstrate 6 the Defendant is plausibly liable. See Iqbal, 129 S. Ct. at 1949. Plaintiff therefore fails to state 7 a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b). 8

Accordingly, the Court dismisses Plaintiff's Complaint. In addition, because the

9 Complaint has been dismissed, Plaintiff's motion for leave to proceed in forma pauperis is 10 denied as moot. 11 II. 12

Motion to Appoint Counsel. The Federal Constitution provides no right to appointment of counsel in a civil case

13 unless an indigent litigant may lose his physical liberty if he or she loses the litigation. Lassiter 14 v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), however, 15 district courts are granted discretion to appoint counsel for indigent persons under "exceptional 16 circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of 17 exceptional circumstances requires an evaluation of both the `likelihood of success on the 18 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of 19 the legal issues involved.' Neither of these issues is dispositive and both must be viewed 20 together before reaching a decision.'" Terrell, 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 21 789 F.2d 1328, 1331 (9th Cir. 1986)). 22

Plaintiff filed her motion to appoint counsel using a form motion intended for

23 employment discrimination actions under the Civil Rights Act of 1964 and 42 U.S.C. § 2000e. 24 (Doc. No. 3.) It is unclear whether Plaintiff alleges an unlawful employment practice, or 25 whether such allegation was properly before the Equal Employment Opportunity Commission. 26 Moreover, the Court is not persuaded under 28 U.S.C. § 1915(e)(1) that Plaintiff warrants 27 appointment of counsel for exceptional circumstances. Finally, because the Complaint has been 28 dismissed for failure to assert subject matter jurisdiction and for failure to state a claim, -3-

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1 Plaintiff's motion to appoint counsel is moot at this time. 2 3 4 5

Accordingly, the Court denies Plaintiff's motion to appoint counsel. Conclusion For the reasons stated above: The Court DISMISSES Plaintiff's Complaint. The Court also DENIES Plaintiff's

6 motion to proceed in forma pauperis and motion to appoint counsel. 7 IT IS SO ORDERED. 8 DATED: July 17, 2009 9 10 11 12 13 COPIES TO: 14 All parties of record. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4_______________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT

08-CV-1686-H (LSP)