Stickler v. California State Police

Filing 5

ORDER (1) denying 3 Motion to Appoint Counsel, (2) granting 2 Motion for Leave to Proceed in forma pauperis, and (3) dismissing Complaint without Prejudice: Plaintiff is GRANTED 45 days leave from the date this Order is filed in which to file a First Amended Complaint which cures all the deficiencies of pleading. The Clerk of Court is directed to mail a court- approved § 1983 form complaint to Plaintiff. Signed by Judge Janis L. Sammartino on 4/23/12. (All non-registered users served via U.S. Mail Service)(form sent)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAMELA STICKLER,

CASE NO. 12CV385 JLS (JMA)
Plaintiff,

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ORDER (1) DENYING
PLAINTIFF’S MOTION TO
APPOINT COUNSEL,
(2) GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS,
AND (3) DISMISSING
COMPLAINT WITHOUT
PREJUDICE

vs.

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CALIFORNIA STATE POLICE,
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Defendant.

(ECF Nos. 2, 3)

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Presently before the Court is Plaintiff Pamela Stickler’s (“Plaintiff”) motion to appoint

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counsel, (Mot. Appoint Counsel, ECF No. 2), and Plaintiff’s motion for leave to proceed in forma

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pauperis (“IFP”), (IFP Mot., ECF No. 3). In her pro se complaint, Plaintiff submitted a single, hand-

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written paragraph, transcribed to the best of the Court’s ability as follows:
The California State police, they had a person in uniform in a San Diego Community
College District car threatening me with arrest at Chabad, and telling me to turn
around [illegible] and put her two arms if she was going to arrest me. Give 1998
toyota tacoma truck back if not repossessed.

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(Compl. 2, ECF No. 1)1

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The Court recently dismissed without prejudice a similar complaint filed by Plaintiff in the
related case, Stickler v. El Cajon Police Dept., 12-CV-00385 JLS (JMA). Rather than filing an
amended complaint in that case, Plaintiff instead initiated a new action and IFP application.
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12cv385

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MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff requests the appointment of counsel to assist in prosecuting this civil action. The

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Constitution provides no right to appointment of counsel in a civil case, unless an indigent litigant

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may lose physical liberty upon losing the litigation. Lassiter v. Dept. of Social Servs., 452 U.S. 18,

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25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to

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appoint counsel for indigent persons. This discretion may be exercised only under “exceptional

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circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of

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exceptional circumstances requires an evaluation of both the ‘likelihood of success on the merits

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and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal

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issues involved.’ Neither of these issues is dispositive and both must be viewed together before

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reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court DENIES Plaintiff’s request WITHOUT PREJUDICE, as neither the interests

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of justice nor exceptional circumstances warrant appointment of counsel at this time. Id. at 1017;

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LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).

MOTION TO PROCEED IFP

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All parties instituting any civil action, suit, or proceeding in a district court of the United

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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28

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U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only

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if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook,

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169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize the commencement of an

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action without the prepayment of fees if the party submits an affidavit, including a statement of

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assets, showing that she is unable to pay the required filing fee. 28 U.S.C. § 1915(a).

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Here, Plaintiff states that she is not employed, receives “help from church” which “varies,”

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and does not have a checking or savings account, a car, or any other valuable property. (IFP Mot.

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2, ECF No. 3.) As to her debts, Plaintiff is “not sure what’s on [her] credit report.” (Id. at 3.)

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Based on the information provided, the Court finds that Plaintiff is unable to pay the required

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filing fee. Accordingly, her motion to proceed IFP is GRANTED.

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//
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12cv385

INITIAL SCREENING

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Notwithstanding IFP status, the Court must subject each civil action commenced pursuant

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to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it

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finds “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks

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

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see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.

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§ 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir.

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2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua

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sponte dismiss an IFP complaint that fails to state a claim).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Andrews v. King, 398

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F.3d 1113, 1121 (9th Cir. 2005). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

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(noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In

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addition, the Court has a duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. L.A.

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Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), which is “particularly important in civil rights

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cases,” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to

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a pro se litigant’s complaint, however, the court may not “supply essential elements of claims that

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were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.

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1982).

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“A pleading that states a claim for relief must contain: . . . a short and plain statement of

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the grounds for the court’s jurisdiction . . . a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . [and] a demand for the relief sought.” Fed. R. Civ. P. 8(a).

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Here, the complaint fails to satisfy the pleading requirements of Federal Rule of Civil Procedure 8.

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It has no short and plain statement of jurisdiction, contains vague sentences that do not appear to

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relate to one another, and does not clearly identify any rights that are being violated to show that

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the pleader is entitled to relief. However, the complaint does not appear frivolous. As such, the

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Court will direct the clerk to provide Plaintiff with a court-approved 42 U.S.C. § 1983 form
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12cv385

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complaint to assist her in drafting an amended complaint.

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CONCLUSION

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Plaintiff’s motion for appointment of counsel is DENIED WITHOUT PREJUDICE.

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Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE for failing to state a claim upon

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which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However,

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Plaintiff is GRANTED forty five (45) days leave from the date this Order is filed in which to file

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a First Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff’s

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Amended Complaint must be complete in itself without reference to the previous pleading. See

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CivLR 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will

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be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The Clerk of Court is directed to mail a court-approved § 1983 form complaint to Plaintiff.

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IT IS SO ORDERED.

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DATED: April 23, 2012
Honorable Janis L. Sammartino
United States District Judge

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12cv385