French v. Calfornia, State of et al

Filing 4

ORDER Dismissing Complaint for Failure to State a Claim without prejudice; denying 3 Motion for Leave to Proceed in forma pauperis; and denying 2 Motion to Appoint Counsel. Signed by Judge Anthony J. Battaglia on 6/30/14. (All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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13 RANDALL J. FRENCH,,
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v.

Plaintiff,

STATE OF CALIFORNIA, et al.,
Defendants.

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Case No.14cv1554 AJB (BLM)
ORDER:
(1) DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM;
(2) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS;
and
(3) DENYING MOTION FOR
APPOINTMENT OF COUNSEL.
[Doc Nos. 1, 2, 3]

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On June 27, 2014, Plaintiff Randall J. French, a non-prisoner proceeding pro se,

23 commenced this action against the State of California and City of San Diego. Plaintiff
24 moves to proceed in forma pauperis (“IFP”) and requests for an appointment of counsel
25 under the Civil Rights Act of 1964. (Doc. Nos. 2 and 3.) For the following reasons, the
26 Court DENIES Plaintiff’s motion to proceed IFP and sua sponte DISMISSES Plaintiff’s
27 Complaint for failure to state a claim. Additionally, due to the dismissal for failure to
28 state a claim, the Court DENIES as premature his motion to appoint counsel.
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1 I.

Motion to Proceed in Forma Pauperis

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Section 1915(a) allows a court to authorize a lawsuit’s commencement without

3 payment of the filing fee if the plaintiff submits an affidavit demonstrating his or her
4 inability to pay the filing fee. Such affidavit must include a complete statement of the
5 plaintiff’s assets. However, an IFP action is subject to dismissal if the court determines
6 that the complaint is frivolous or malicious, fails to state a claim upon which relief may
7 be granted, or seeks monetary damages against a defendant who is immune from liability
8 for such damages. 28 U.S.C. § 1915(e)(2). When a plaintiff moves to proceed IFP, the
9 court first “grants or denies IFP status based on the plaintiff's financial resources alone
10 and then independently determines whether to dismiss the complaint” pursuant to
11 § 1915(e)(2). Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984).
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“To proceed in forma pauperis is a privilege not a right.” Smart v. Heinze, 347

13 F.2d114, 116 (9th Cir. 1965). A party need not be completely destitute to proceed in
14 forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948).
15 But “the same even-handed care must be employed to assure that federal funds are not
16 squandered to underwrite, at public expense, either frivolous claims or the remonstrances
17 of a suitor who is financially able, in whole or in material part, to pull his own oar.”
18 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).
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Plaintiff has submitted an affidavit in support of the IFP motion indicating he is

20 unemployed, receives an unspecified amount from unemployment insurance benefits,
21 and has a checking account, though he fails to specify the balance. The affidavit,
22 however, is otherwise incomplete as many of the remaining sections are missing required
23 information. Accordingly, the Court finds that the motion and declaration submitted by
24 Plaintiff in support of his request to proceed IFP do not represent a full and accurate
25 summary of his financial condition. Because the affidavit is incomplete, it does not
26 support Plaintiff’s contention that he is unable to pay the costs of this litigation without
27 foregoing the necessities of life. 28 U.S.C. § 1915(a)(1); United States v. McQuade, 647
28 F.2d 938, 940 (9th Cir. 1981) (per curiam) (when a claim of poverty is made under §
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1 1915, it is essential for the application to state the facts as to property with some
2 particularity, definiteness and certainty). For these reasons, the Court concludes that
3 Plaintiff has not satisfied the indigency requirements of 28 U.S.C. § 1914(a)(1).
4 Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion to
5 proceed in forma pauperis.
6 II.

SUA SPONTE DISMISSAL FOR FAILURE TO STATE A CLAIM

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Plaintiff’s Complaint does not state a specific claim on which relief may be

8 granted. A court may dismiss the case at any time if it determines the plaintiff failed to
9 state a claim on which relief may be granted pursuant to § 1915(e)(2). Barren v.
10 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). “A plaintiff must allege facts, not
11 simply conclusions, that show an individual was personally involved in the deprivation
12 of his civil rights.” Id. A court will deny any motion that fails to present a legal and
13 factual basis. Id.
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Here, Plaintiff’s entire Complaint consists of the caption page and the civil cover

15 page. No factual allegations are made whatsoever. Indeed, from what little information
16 is contained within the request for appointment of counsel, it appears that Plaintiff is
17 attempting to bring an employment discrimination action pursuant to Title VII of the
18 Civil Rights Act of 1964. (Doc. No. 2 at 1.) As such, Plaintiff has not presented any
19 basis for a cognizable claim on which relief may be granted. Pursuant to 1915(e)(5), the
20 Court DISMISSES the Complaint WITHOUT PREJUDICE for failure to state a claim.
21 The Court advises that should Plaintiff re-file an amended complaint, he must state a
22 claim that shows entitlement to relief that would give the defendants fair notice of what
23 the claim is and the grounds upon which it rests. This would require a sufficient factual
24 basis of defendant’s conduct that gives rise to Plaintiff’s discrimination claim.
25 III.

Motion for Appointment of Counsel

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The only grounds for which Plaintiff rests his motion to appoint counsel is that he

27 is unable to afford a private attorney. (Doc. No. 2 at 4.) Indeed, Plaintiff concedes that
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1 he has not made any efforts to talk to an attorney about handling his claim. (Id. at 3.)
2 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust
3 Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus,
4 federal courts do not have the authority “to make coercive appointments of counsel.”
5 Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United
6 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
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Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to

8 “request” that an attorney represent indigent civil litigants upon a showing of exceptional
9 circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v.
10 County of King, 883 F.2d 819, 823 (9th Cir. 1989). “A finding of exceptional circum11 stances requires an evaluation of both the ‘likelihood of success on the merits and the
12 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal
13 issues involved.’ Neither of these issues is dispositive and both must be viewed together
14 before reaching a decision.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331
15 (9th Cir. 1986)).
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Here, the Court cannot appoint counsel when Plaintiff has not yet stated a

17 cognizable claim. Having dismissed the Complaint, the Court concludes that this motion
18 is premature and therefore, there is no basis for appointment of counsel at this time.
19 Plaintiff’s motion to appoint counsel is DENIED WITHOUT PREJUDICE.
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CONCLUSION

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For the foregoing reasons, the Court: (1) DISMISSES the Complaint WITHOUT

22 PREJUDICE; (2) DENIES the Motion to Proceed In Forma Pauperis WITHOUT
23 PREJUDICE; and (3) DENIES Motion for Appointment of Counsel WITHOUT PREJ24 UDICE.
25 IT IS SO ORDERED.
26 DATED: June 30, 2014
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Hon. Anthony J. Battaglia
U.S. District Judge
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