Turner v. U.S. Department of Education et al

Filing 9

ORDER Granting Motion to Proceed IFP, Sua Sponte Dismissing Complaint and Denying Appointment of Counsel. If Plaintiff wishes to file a FAC, it must be filed within 45 days of the date this Order is filed.Signed by Judge Roger T. Benitez on 8/10/2015.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIE EARL TURNER, Qui Tam
Plaintiff on behalf of himself and the
United States,
Plaintiff,

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v.

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UNITED STATES DEPARTMENT OF
EDUCATION, et aI.,
Defendants.

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Case No.: 15CV424 BEN (NLS)

ORDER GRANTING MOTION TO
PROCEED IFP, SUA SPONTE
DISMISSING COMPLAINT AND
DENYING APPOINTMENT OF
COUNSEL
[Docket No. 2-3, 5]

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Plaintiff Willie Earl Turner, proceeding pro se, has filed a Complaint that appears

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to assert a claim under the False Claims Act ("FCA") on behalf of the United States.

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(Docket No.1.) Plaintiff has not paid the civil filing fee required to commence this

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action, but has filed a motion to proceed in forma pauperis ("IFP"). (Docket No.2.)

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Plaintiff also filed a motion for appointment of counsel. (Docket No.3.) For the reasons

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set forth below, the Court GRANTS the motion to proceed IFP, sua sponte screens and

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DISMISSES the Complaint for failing to state a claim, and DENIES the motion for

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appointment of counsel.

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III

15CV424 BEN (NLS)

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DISCUSSION
I.

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Motion to Proceed IFP
All parties instituting any civil action in a district court must pay a filing fee. 28

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U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire

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fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).

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Under 28 U.S.C. § 1915(a)(1),
any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding ... without prepayment of fees or security therefor,
by a person who submits an affidavit that includes a statement
of all assets such [person] possesses that the person is unable to
pay such fees or give security therefor.

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The information provided in Plaintiffs affidavit reflects that he is unable to pay the

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fee to pursue this action. Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. §

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1915(a) is GRANTED.

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II.

Sua Sponte Screening

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An IFP complaint is subject to mandatory screening. Pursuant to 28 U.S.C. §

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1915(e)(2)(B), notwithstanding any filing fee, the Court must dismiss any complaint ifat

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any time the Court determines that it is "frivolous or malicious," "fails to state a claim on

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which relief may be granted," or "seeks monetary relief against a defendant who is

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immune from such relief." The sua sponte screening is mandatory. See Lopez v. Smith,

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203 F.3d 1122, 1127 (9th Cir. 2000) (en bane); see also Calhoun v. Stahl, 254 F.3d 845,

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845 (9th Cir. 2001) (per curiam) ("[T]he provisions of28 U.S.C. § 1915(e)(2)(B) are not

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limited to prisoners.").

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It appears that Plaintiff is attempting to assert a claim under the FCA of behalf of

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the United States. "Under the False Claims Act ("FCA"), '[a]ny person' who, among

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other things, 'knowingly presents, or causes to be presented, to an officer or employee of

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the United States Government ... a false or fraudulent claim for payment or approval' is
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15CV424 BEN (NLS)

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1 liable to the Government for a civil penalty, treble damages, and costs." Stoner v. Santa

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Clara Cnty. Office ofEduc., 502 F.3d 1116, 1120 (9th Cir. 2007)(quoting 31 U.S.C. §

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3729(a)(1». Plaintiff is attempting to bring a qui tam action and seek a share of any

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amount recovered in this action. (Compl.

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known as a relator, to bring a qui tam civil action 'for a violation of section 3729 for the

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person and for the United States Government .... in the name of the Government. '"

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Stoner, 502 F.3d at 1120 (quoting 31 U.S.C. § 3730(b)(1».

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2.) "The FCA authorizes a private person,

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Plaintiff fails to state a claim under the FCA. Much of Plaintiff s Complaint

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describes his unsuccessful efforts to obtain disability benefits in the 1960s and retirement

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benefits at some later time from the Social Security Administration. Plaintiff also

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describes various tax credits he believes he would otherwise have been entitled to, e.g.

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Economic Stimulus Payment, being wrongfully taken by the United States to pay student

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loan debts. Other allegations suggest that Plaintiff may be claiming that these debts were

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incurred by identity thieves, although this is somewhat unclear. Plaintiff also describes

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discovering in the 1980s that his father was the victim of identity thieves in the 1940s.

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Plaintiff seems to be alleging that numerous named Defendants, most are federal

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agencies, were either duped by these identity thieves or conspiring with them to

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improperly payout money. But there are no facts alleged that would support such a

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claim; just conclusory allegations of a conspiracy between a myriad of federal agencies

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and unidentified identity thieves. None of these allegations give rise to a claim under the

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FCA and might also be considered frivilous.

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Additionally, Plaintiff cannot bring a qui tam action on behalf of the United States

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without counsel. Stoner, 502 F.3d at 1126 (finding a pro se relator cannot prosecute a qui

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tam action because unrepresented individuals are not authorized to bring an action in

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federal court on behalf of others, including the United States).

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Finally, assuming Plaintiff could state an FCA claim, federal agencies are not

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proper Defendants for a qui tam action under the FCA. Not only is this the equivalent of
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the United States suing the United States, but the United States has not waived sovereign

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immunity as to FCA claims. Taxpayers of the

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Cal. Dec. 30, 2004) (finding FCA contains no waiver of sovereign immunity); Juliano v.

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Fed. Asset Disposition Ass 'n, 736 F. Supp. 348, 351-53 (D.D.C. 1990) (declining to

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expand FCA to allow a qui tam suit against a federal agency where not provided for

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under the statute); see also Balser v. Dep't ofJustice, Office of u.s. Tr., 327 F.3d 903,

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907 (9th Cir. 2003) (finding suits against federal agencies are suits against the United

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States and the United States is immune absent waiver of sovereign immunity)

u.s. v. Bush, 2004 WL 3030076, *5 (C.D.

Accordingly, the Complaint is DISMISSED because it fails to allege sufficient

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factual matter, accepted as true, to state a plausible claim to relief. See Ashcroft v. Iqbal,

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129 S. Ct. 1937, 1949 (2009); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th

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Cir. 1998) (order) ("The language of § 1915(e)(2)(B)(ii) parallels the language of Federal

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Rule of Civil Procedure 12(b)(6).").

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Although the Court finds it unlikely Plaintiff will be able to state a claim, the Court

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grants Plaintiffleave to file a First Amended Complaint ("FAC") that cures the

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deficiencies noted above and retain counsel if he intends to pursue a FCA claim on behalf

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of the United States. If Plaintiff files a FAC, it must be filed within 45 calendar days of

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the date of this Order and be complete in itself without reference to Plaintiffs initial

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Complaint. See Civil LR 15.I.

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III.

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Appointment of Counsel
The Constitution provides no right to appointment of counsel in a civil case unless

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an indigent litigant may lose his physical liberty ifhe loses the litigation. Lassiter v.

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Dep'tofSoc. Servs., 452 U.S. 18,25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(I),

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district courts are granted discretion to appoint counsel for indigent persons. This

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discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires

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an evaluation of both the 'likelihood of success on the merits and the ability of the
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[plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.' Neither of these factors is dispositive and both must be viewed together

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before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331

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(9th Cir. 1986)). The Complaint shows no likelihood of success on the merits and the

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only complexity of the legal issues involved is the attempt to apply the FCA to facts that

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do not give rise to a claim. Because this case does not present exceptional circumstances,

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Plaintiffs request for appointment of counsel is DENIED.

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CONCLUSION

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Plaintiffs motion to proceed IFP is GRANTED. Plaintiffs Complaint is sua

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sponte DISMISSED. If Plaintiff wishes to file a FAC, it must be filed within 45 days of

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the date this Order is filed. Plaintiffs motion to appoint counsel is DENIED. The

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Government's pending motion to dismiss the Complaint is DENIED as moot given the

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Complaint has been dismissed. If Plaintiff does not file a FAC within 45 days, this case

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will remain dismissed

sed.

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DATED:
. Benitez
United States District Court

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15CV424 BEN (NLS)