Hayes v. Nassco

Filing 4

ORDER: (1) Denying Motion to Proceed in Forma Pauperis; (2) Denying Motion for Appointment of Counsel; and (3) Dismissing Complaint. Plaintiff is granted thirty (30) days from the date of this Order to file a new motion to proceed IFP and a proposed first amended complaint. Signed by Judge Roger T. Benitez on 1/17/2017.(All non-registered users served via U.S. Mail Service)(knb)

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1 r ILtu 2 17 JAN 17 PM 3:39 3 ClfeRK, U.S. DISTRICT DOUR f SOUTHERN DISTRICT OF CAUFORFIA 4 °-V' 5 busty 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 Case No.: 3:17-cv-00004-BEN-WVG CHASE HAYES, Plaintiff, 12 13 v. 14 ORDER: NASSCO, (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; Defendant. 15 (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL; 16 17 (3) DISMISSING COMPLAINT 18 [Docket Nos. 1-3] 19 20 On January 6, 2017, Plaintiff Chase Hayes filed a civil Complaint, a Motion to 21 22 Proceed In Forma Pauperis (“IFP”), and a Motion for Appointment of Counsel. (Docket 23 Nos. 1-3.) For the reasons stated below, the Motions to Proceed IFP and for 24 Appointment of Counsel are DENIED, and the Complaint is DISMISSED without 25 prejudice. 26 III 27 III 28 III l 3:17-CV-00004-BEN-WVG to 1 I. Motion to Proceed IFP All parties instituting any civil action in a district court must pay a filing fee. 28 2 3 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire 4 fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). Under 28 U.S.C. § 1915(a)(1), 5 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. 6 7 8 9 10 Plaintiff stated he receives approximately $1,250 a month in employment income 11 12 and disability benefits. (Docket No. 2 at 11.) He indicates he does not pay any monthly 13 expenses. {Id. at 8.) The Court finds Plaintiff has not sufficiently stated that he cannot 14 afford to pay the filing fee. The Motion is therefore DENIED. However, Plaintiff is 15 granted leave to file a new motion to proceed in forma pauperis explaining why he 16 cannot pay the filing fees. 17 II. 18 19 20 Motion to Appoint Counsel Plaintiff has moved for the appointment of counsel, on the sole grounds that he cannot represent himself because he is not an attorney. (Docket No. 3.) Courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint 21 counsel for indigent civil litigants upon a showing of exceptional circumstances. “A 22 finding of exceptional circumstances requires an evaluation of both the likelihood of 23 success on the merits and the ability of the petitioner to articulate his claims pro se in 24 light of the complexity of the legal issues involved.” Terrell v. Brewer, 935 F.2d 1015, 25 1017 (9th Cir. 1991) (internal citations omitted). “Neither of these factors is dispositive 26 and both must be viewed together before reaching a decision.” Id. (internal citations 27 omitted). 28 2 3:17-cv-00004-BEN-WVG At this time, the Court cannot say there is any likelihood of success on the merits. 1 1 2 Moreover, Plaintiff fails to demonstrate an inability to represent himself beyond the 3 ordinary burdens encountered by plaintiffs representing themselves pro se, or that he has 4 even attempted to obtain counsel to represent him. See Garcia v. Smith, No. 10-cv-l 187, 5 2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012) (“Merely alleging indigence is 6 insufficient to entitle him to appointed counsel; he must also demonstrate that he made a 7 good faith effort, but was unable, to obtain counsel.”). Therefore, the Court finds that the 8 exceptional circumstances required for the appointment of counsel are not present. 9 Plaintiffs Motion is DENIED. 10 III. Section 1915 Screening 11 A. Legal Standard 12 Under section 1915(e) of title 28 of the United States Code, the Court must sua 13 sponte dismiss IFP complaints, or any portions thereof, which are frivolous, malicious, 14 fail to state a claim, or which seek damages from defendants who are immune. See Lopez 15 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 16 1915(e)(2)). “[T]he provisions of section 1915(e)(2)(B) are not limited to prisoners.” 17 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001). Every complaint must contain “a short and plain statement of the claim showing 18 19 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 20 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 21 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 22 (2009) (citing BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are 23 well-pleaded factual allegations, a court should assume their veracity, and then determine 24 whether they plausibly give rise to an entitlement to relief.” Id. at 679; see Barren v. 25 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2) 26 27 28 As will be described in further detail below, Plaintiffs Complaint does not contain sufficient facts to state a claim for relief. i 3 3:17-cv-00004-BEN-WVG 1 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). “Determining 2 whether a complaint states a plausible claim for relief [is]... a context-specific task that 3 requires the reviewing court to draw on its judicial experience and common sense.” 4 Iqbal, 556 U.S. at 679. The “mere possibility of misconduct” falls short of meeting this 5 plausibility standard. Id; see also Moss v. U.S. SecretServ., 512 F.3d 962, 969 (9th Cir. 6 2009). 7 While a plaintiffs factual allegations are taken as true, courts “are not required to 8 indulge unwarranted inferences.” Doelv. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 9 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 10 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 11 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 12 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l 13 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 14 pled.” Ivey v. Bd. ofRegents of the Univ. of Alaska, 613 F.2d 266, 268 (9th Cir. 1982). 15 B. Discussion 16 Plaintiffs Complaint must be dismissed for failing to state a claim upon which 17 relief may be granted. 28 U.S.C. § 1915(e). Plaintiffs Complaint, which includes a 18 single request for relief of “reinstate job [sic],” is literally devoid of any factual 19 allegations. (Docket No. 1 at 3.) Instead, Plaintiff directs the Court to “See Right to Sue 20 Letter,” which he attached as Exhibit A to his Complaint. (Id. at 2.) However, Exhibit A 21 appears to consist of: 22 (1) a letter dated December 20, 2016, from the U.S. Equal Employment 23 Opportunity Commission (“EEOC”) giving Plaintiff notice of his right to sue; 24 (2) a letter dated November 9, 2016, from the EEOC requesting documentation 25 regarding his alleged employment discrimination claims; 26 (3) a letter dated June 2, 2016, from Plaintiffs physician stating Plaintiff may 27 return to work immediately without restrictions; and 28 (4) a letter dated May 17, 2000, from the U.S. Department of Labor, Employment 4 3:17-cv-00004-BEN-WVG 1 Standards Administration, verifying Plaintiff is receiving benefits for an 2 unidentified work related injury. 3 Even construing the documents liberally, the Court finds Plaintiff has failed to state a 4 claim for discrimination. The EEOC documents refer to Plaintiffs allegations of 5 employment discrimination, but do not contain any facts regarding who, what, where and 6 how Plaintiff was discriminated against by NAASCO. The other two letters from 7 Plaintiffs physician and the U.S. Depart of Labor similarly lack any facts regarding any 8 claims of discrimination. 9 In short, Plaintiffs Complaint falls well below the requirement to include “a short 10 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 11 Civ. P. 8(a)(2). Accordingly, the Complaint is DISMISSED. However, the Court grants 12 Plaintiff leave to file a First Amended Complaint that cures the deficiencies noted above. 13 CONCLUSION 14 Plaintiffs Motions to Proceed IFP and for Appointment of Counsel are DENIED. 15 The Complaint is DISMISSED without prejudice for failing to state a claim. Plaintiff 16 is granted thirty (30) days from the date of this Order to file a new motion to proceed 17 IFP. If Plaintiff chooses to file a new motion to proceed IFP, he must also file his 18 proposed first amended complaint with said motion. If the Court grants Plaintiffs second 19 motion to proceed IFP, it will then consider whether Plaintiffs proposed first amended 20 complaint sufficiently states a claim upon which relief may be granted. If Plaintiff does 21 not file a new motion to proceed IFP and proposed first amended complaint, this action 22 shall remain closed without further Order of the Court. 23 IT IS SO ORDERED. 24 25 26 DATED: January 017 HON, tTbenitez United Stages District Judge 27 28 5 3:17-cv-00004-BEN-WVG

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