Capers v. United States Justice Department

Filing 4

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; (2) Denying Motion for Appointment of Counsel; and (3) Dismissing Complaint for Failing to State a Claim. The Complaint is dismissed without prejudice for failing to state a claim. Plaintiff is granted thirty (30) days from the date of this Order to file a first amended complaint. Signed by Judge Roger T. Benitez on 2/3/2017.(All non-registered users served via U.S. Mail Service)(knb)

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. o 1 17FEB-7 AH lb is 2 3 4 ... •■)¥• ■■■#ss&ry 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 JAMES JOSEPH CAPERS, Case No.: 3:17-cv-00156-BEN-NLS Plaintiff, 12 13 v. 14 ORDER: UNITED STATES JUSTICE DEPARTMENT, 15 (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; Defendant. 16 (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL; 17 (3) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM 18 19 On January 26, 2017, Plaintiff Janies Joseph Capers filed a civil Complaint, a 20 21 22 23 24 25 26 27 28 Motion to Proceed In Forma Pauperis (“IFP”), and a Motion for Appointment of Counsel. (Docket Nos. 1-3.) For the reasons stated below, the Motion to Proceed IFP is GRANTED, the Motion for Appointment of Counsel is DENIED, and the Complaint is DISMISSED without prejudice. I. Motion to Proceed IFP All parties instituting any civil action in a district court must pay a filing fee. 28 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). l 3:17-cv-00156-BEN-NLS o Under 28 U.S.C. § 1915(a)(1), 1 2 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. 3 4 5 6 Plaintiff indicated that she is homeless, unemployed and receives no income other 7 8 than food stamps in the amount of $198.00 per month. (Docket No. 2 at 9 Plaintiff has sufficiently stated that she cannot afford to pay the filing fee. (Docket No. 2 10 at 111.) Accordingly, the Motion to File IFP is GRANTED. 11 II. 1-2, 8.) Thus, Plaintiff has moved for the appointment of counsel, on the sole grounds that she 12 13 Motion to Appoint Counsel does not have the money to pay an attorney. (Docket No. 3.) Courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint 14 15 counsel for indigent civil litigants upon a showing of exceptional circumstances. “A 16 finding of exceptional circumstances requires an evaluation of both the likelihood of 17 success on the merits and the ability of the petitioner to articulate his claims pro se in 18 light of the complexity of the legal issues involved.” Terrell v. Brewer, 935 F.2d 1015, 19 1017 (9th Cir. 1991) (internal citations omitted). “Neither of these factors is dispositive 20 and both must be viewed together before reaching a decision.” Id. (internal citations 21 omitted). At this time, the Court cannot say there is any likelihood of success on the merits. i 22 23 Moreover, Plaintiff fails to demonstrate an inability to represent herself beyond the 24 ordinary burdens encountered by plaintiffs representing themselves pro se, or that she has 25 even attempted to obtain counsel to represent him. See Garcia v. Smith, No. 10-cv-l 187, 26 27 28 i As will be described in further detail below, Plaintiffs Complaint does not contain sufficient facts to state a claim for relief. 2 3:17-cv-OO 156-BEN-NLS f) 1 2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012) (“Merely alleging indigence is 2 insufficient to entitle him to appointed counsel; he must also demonstrate that he made a 3 good faith effort, but was unable, to obtain counsel”). Therefore, the Court finds that the 4 exceptional circumstances required for the appointment of counsel are not present. 5 Plaintiffs Motion is DENIED. 6 III. Section 1915 Screening 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 “[tjhreadbare 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 Bell Atl. 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-00156-BEN-NLS 1 While a plaintiffs factual allegations are taken as true, courts “are not required to 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 10 B. Discussion Plaintiffs Complaint must be dismissed for failing to state a claim upon which 11 relief may be granted. 28 U.S.C. § 1915(e). In the Complaint, Plaintiff “accuses the 12 United States Government Administration” of the following actions: 13 14 15 16 17 18 Sexual Assault, Verbal Harassment, Bulling [sic], interstate Slaking [sic], discrimination and prejudice to Transgender Violations of Civil Rights [sic], undercover operations, unwarranted phone taps, video and personal surveillance. This also includes Religious Persecution an direct attacks [sic] regarding beliefs and practices. Lastly, blocking and stopping open Business Services and communications, refusal to provide US Pass Port [sic] with proper documentation as required by Federal Regulations ... 19 20 (Docket No. 1 at 2.) The remainder of the 4-page Complaint consists of nonsensical and 21 seemingly irrelevant assertions regarding Plaintiffs “creations and inventions,” 22 groundless accusations of misconduct by “the government,” and vague conclusions that 23 “the government” discriminated against him for being transgender. (Id. at 2-5.) 24 Even construing the documents liberally, the Court finds Plaintiff has failed to state 25 any claim for relief as the Complaint is devoid of any factual allegations to support any of 26 the asserted claims. 27 28 In short, Plaintiffs Complaint falls well below the requirement to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 4 3:17-cv-00156-BEN-NLS /V 1 Civ. P. 8(a)(2). Accordingly, the Complaint is DISMISSED. However, the Court grants 2 Plaintiff leave to file a First Amended Complaint that cures the deficiencies noted above. 3 CONCLUSION 4 Plaintiffs Motion to Proceed IFP is GRANTED. Plaintiffs Motion for 5 Appointment of Counsel is DENIED. The Complaint is DISMISSED without 6 prejudice for failing to state a claim. Plaintiff is granted thirty (30) days from the date 7 of this Order to file a first amended complaint (“FAC”) that cures the deficiencies 8 identified in this Order. If Plaintiff does not file an FAC, this action shall remain closed 9 without further order of the Court. 10 IT IS SO ORDERED. 11 12 13 DATED: February 2017 HON. "TBENITEfe United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:17-cv-00156-BEN-NLS

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