Capers v. United States Justice Department

Filing 14

ORDER: (1) denying 11 Motion to Provide Proof of Service; (2) denying 13 Second Motion for Appointment of Counsel; and (3) Dismissing Complaint for Failing to State a Claim. Plaintiff is granted thirty (30) days from the date of this Order to file a second amended complaint (SAC) that cures the deficiencies identified in this Order. If Plaintiff does not file a SAC, this action shall remain closed without further order of the Court. Signed by Judge Roger T. Benitez on 4/5/2017. (All non-registered users served via U.S. Mail Service) (fth)

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1 2 17 APR-B AM ft-jlt 3 S3sav £w*~;.-.&A^i-.,;, ?:i4U;.kaM}i? 4 <¥T 5 i®§» 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 Case No.: 3:17-cv-00156-BEN-NLS JAMES JOSEPH CAPERS, Plaintiff, 12 13 v. 14 ORDER: UNITED STATES JUSTICE DEPARTMENT, 15 (1) DENYING MOTION TO PROVIDE PROOF OF SERVICE; Defendant. 16 (2) DENYING SECOND MOTION FOR APPOINTMENT OF COUNSEL; and 17 18 (3) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM 19 20 Plaintiff Janies Joseph Capers has filed a Motion to Provide Proof of Service and a 21 22 second Motion for Appointment of Counsel. (Docket Nos. 11,13.) The Court finds the 23 Motions suitable for determination on the papers without oral argument, pursuant to Civil 24 Local Rule 7.1.d.l. For the reasons set forth below, each Motion is DENIED, and 25 Plaintiffs First Amended Complaint is DISMISSED without prejudice. 26 I. 27 28 Motion to Provide Proof of Service Plaintiff moved for a court order ordering a United States Marshall to serve Defendant. (Docket No. 11.) However, Plaintiff did not state what it wanted the Court to l 3:17-cv-00156-BEN-NLS 1 serve on Defendant. Even if the Court assumes Plaintiff seeks to have Defendant served 2 with the First Amended Complaint (“FAC”), Plaintiffs request is moot because 3 Defendant has already appeared by moving for an extension of time to file its answer to 4 the FAC. (Docket No. 8.) Accordingly, Plaintiffs Motion to Provide Proof of Service is 5 DENIED. 6 II. Second Motion for Appointment of Counsel i Plaintiffs second Motion for Appointment of Counsel asserts Plaintiff should be 7 8 appointed counsel because Plaintiff is indigent, disabled, and has been unable to retain an 9 attorney. (Docket No. 13 at 1-3.) As the Court stated in its February 7, 2017 Order (docket no. 4), courts have 10 11 discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint counsel for indigent 12 civil litigants upon a showing of exceptional circumstances. “A finding of exceptional 13 circumstances requires an evaluation of both the likelihood of success on the merits and 14 the ability of the petitioner to articulate his claims pro se in light of the complexity of the 15 legal issues involved.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (internal 16 citations omitted). “Neither of these factors is dispositive and both must be viewed 17 together before reaching a decision.” Id. (internal citations omitted). 18 The Court cannot say there is any likelihood of success on the merits of Plaintiff s 19 claims because, as will be explained in further detail below, Plaintiffs FAC fails to state 20 a claim upon which relief may be granted. In addition, Plaintiff does not demonstrate an 21 inability to represent herself beyond the ordinary burdens encountered by plaintiffs 22 representing themselves pro se. See Garcia v. Smith, No. 10-cv-l 187, 2012 WL 23 2499003, at *4 (S.D. Cal. June 27, 2012). Therefore, the Court finds that the exceptional 24 25 26 27 28 The Court denied Plaintiffs first request for appointment of counsel for failing to demonstrate a likelihood of success on the merits of her claim. (Docket No. 4.) l 2 3:17-cv-OO 15 6-BEN-NLS 1 circumstances required for the appointment of counsel are not present. Plaintiffs second 2 Motion for Appointment of Counsel is DENIED. 3 III. 4 Section 1915 Screening The Court granted Plaintiffs Motion to Proceed In Forma Pauperis (“IFP”) 5 (docket no. 4), and must determine whether Plaintiffs FAC sufficiently alleges facts to 6 state a claim for relief. 28 U.S.C. § 1915(e)(2). 7 A. Legal Standard 8 Under section 1915(e) of title 28 of the United States Code, the Court must sua 9 sponte dismiss IFP complaints, or any portions thereof, which are frivolous, malicious, 10 fail to state a claim, or which seek damages from defendants who are immune. See Lopez 11 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 12 1915(e)(2)). “[T]he provisions of section 1915(e)(2)(B) are not limited to prisoners.” 13 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001). Every complaint must contain “a short and plain statement of the claim showing 14 15 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 16 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 17 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 18 (2009) (citing BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are 19 well-pleaded factual allegations, a court should assume their veracity, and then determine 20 whether they plausibly give rise to an entitlement to relief.” Id. at 679; see Barren v. 21 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2) 22 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). “Determining 23 whether a complaint states a plausible claim for relief [is]... a context-specific task that 24 requires the reviewing court to draw on its judicial experience and common sense.” 25 Iqbal, 556 U.S. at 679. The “mere possibility of misconduct” falls short of meeting this 26 plausibility standard. Id.’ see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. , 27 2009). 28 3 3:17-cv-OO 15 6-BEN-NLS While a plaintiffs factual allegations are taken as true, courts “are not required to 1 2 indulge unwarranted inferences.” Doelv. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 3 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 4 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 5 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 6 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l 7 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 8 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 9 B. Discussion 10 Plaintiffs FAC must be dismissed for failing to state a claim upon which relief 11 may be granted. 28 U.S.C. § 1915(e). The Court previously found Plaintiffs 7-page 12 initial complaint failed to state a claim because it contained “nonsensical and seemingly 13 irrelevant assertions regarding Plaintiffs ‘creations and inventions,’ groundless 14 accusations of misconduct by ‘the government,’ and vague conclusions that ‘the 15 government’ discriminated against him for being transgender.” (Docket No. 4 at 4.) Plaintiffs 48-page FAC has not cured those deficiencies.2 (Docket No. 5.) 16 17 Plaintiffs Complaint contains various accusations, state and federal legal definitions, 18 pictures of scientific research, excerpts of alleged contracts, and legal conclusions 19 spanning multiple time frames. Thus, Plaintiff fails to provide “a short and plain 20 statement of the claim showing that the pleader is entitled to relief,” and it is unclear 21 whether she has stated any plausible claims for relief. Fed. R. Civ. Proc. 8(a)(2). 22 III 23 III 24 25 26 27 28 2 The Court further notes Plaintiff did not provide “a version of the proposed amended pleading that shows—through redlining, underlining, strikeouts, or other similarly effective typographic methods—how the proposed amended pleading differs from the operative pleading,” as required by Civil Local Rule 15.1.b. 4 3:17-cv-00156-BEN-NLS 1 As a result, the Court must dismiss the FAC for failing to state a claim upon which 2 relief may be granted. 28 U.S.C. § 1915(e)(2). However, the Court grants Plaintiff leave 3 to file a Second Amended Complaint that cures the deficiencies identified above. 4 5 CONCLUSION For the reasons stated above, Plaintiffs Motion to Provide Proof of Service and 6 second Motion for Appointment of Counsel are DENIED. Plaintiffs First Amended 7 Complaint is DISMISSED without prejudice for failing to state a claim. Plaintiff is 8 granted thirty (30) days from the date of this Order to file a second amended complaint 9 (“SAC”) that cures the deficiencies identified in this Order. If Plaintiff does not file a 10 11 SAC, this action shall remain closed without further order of the Court. IT IS SO ORDERED. 12 13 14 DATED: Apr! , 2017 HOI^RffefiR T. BENlUiZ United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:17-cv-OO 156-BEN-NLS

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