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)

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