Shoquist v. U.S. Forest Service Department of Agriculture

Filing 4

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; (2) Denying Motion for Appointment of Counsel; (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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:17-cv-00204-BEN-NLS

ALBERT SHOQUIST,
Plaintiff,

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v.

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ORDER:

UNITED STATES FOREST SERVICE
DEPARTMENT OF AGRICULTURE,

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(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;

Defendant.

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(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL;

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(3) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM

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[Docket Nos. 1-3]

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On February 2, 2017, Plaintiff Albert Shoquist filed a civil Complaint, a Motion to

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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.
III
III
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I.

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).
Under 28 U.S.C. § 1915(a)(1),

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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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Plaintiff stated he receives approximately $880.00 a month from public-assistance

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12 programs and retirement benefits. (Docket No. 2 at 11.) His monthly expenses are
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approximately $640.00. (Id. at % 8.) The Court finds Plaintiff has sufficiently stated that

14 he cannot afford to pay the filing fee. The Motion is therefore GRANTED.
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II.

Motion to Appoint Counsel
Plaintiff has moved for the appointment of counsel, on the sole grounds that he

cannot afford to hire an attorney. (Docket No. 3.)
Courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint

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counsel for indigent civil litigants upon a showing of exceptional circumstances. “A

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finding of exceptional circumstances requires an evaluation of both the likelihood of

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success on the merits and the ability of the petitioner to articulate his claims pro se in

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light of the complexity of the legal issues involved.” Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir. 1991) (internal citations omitted). “Neither of these factors is dispositive

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and both must be viewed together before reaching a decision.” Id. (internal citations

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omitted).

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3:17-cv-00204-BEN-NLS

At this time, the Court cannot say there is any likelihood of success on the merits. 1

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2 Moreover, Plaintiff fails to demonstrate an inability to represent himself beyond the
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ordinary burdens encountered by plaintiffs representing themselves pro se, or that he has

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even attempted to obtain counsel to represent him. See Garcia v. Smith, No. 10-cv-l 187,

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2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012) (“Merely alleging indigence is

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insufficient to entitle him to appointed counsel; he must also demonstrate that he made a

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good faith effort, but was unable, to obtain counsel.”). Therefore, the Court finds that the

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exceptional circumstances required for the appointment of counsel are not present.

9 Plaintiffs Motion is DENIED.
10 III.

Section 1915 Screening

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A. Legal Standard

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Under section 1915(e) of title 28 of the United States Code, the Court must sua

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sponte dismiss IFP complaints, or any portions thereof, which are frivolous, malicious,

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fail to state a claim, or which seek damages from defendants who are immune. See Lopez

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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. §

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1915(e)(2)). “[T]he provisions of section 1915(e)(2)(B) are not limited to prisoners.”

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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001).
Every complaint must contain “a short and plain statement of the claim showing

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19 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported

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by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are

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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.
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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2)

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As will be described in further detail below, Plaintiffs Complaint does not contain
sufficient facts to state a claim for relief.
i

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3:17-cv-00204-BEN-NLS

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). “Determining

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whether a complaint states a plausible claim for relief [is]... a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.”

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Iqbal, 556 U.S. at 679. The “mere possibility of misconduct” falls short of meeting this

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,
plausibility standard. Id.’ see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009).

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While a plaintiffs factual allegations are taken as true, courts “are not required to

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indulge unwarranted inferences.” Doelv. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

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Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

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obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

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pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Filler,

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627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l

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(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, 673 F.2d 266, 268 (9th Cir. 1982).
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B. Discussion

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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
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single request for relief of “money compensation” lacks any factual allegations. (Docket

19 No. 1 at 3.) Even construing the documents liberally, the Court finds Plaintiff has failed
20 to state any cognizable claim.2 As a result, Plaintiffs Complaint falls well below the
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requirement to include “a short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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2 This may be due to the fact that the Court did not receive the second page of the form
complaint form, which instructs the filing party to: “Briefly state the facts of your case.
Describe how each defendant is involved, and tell what each defendant did to you that
caused you to file this suit against them. Include names of any other persons involved,
dates, and places.” (Docket No. 1 at 1.)
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Accordingly, the Complaint is DISMISSED. However, the Court grants Plaintiff
leave to file a First Amended Complaint that cures the deficiencies noted above.

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CONCLUSION
Plaintiffs Motion to Proceed IFP is GRANTED. Plaintiffs Motion for

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Appointment of Counsel is DENIED. The Complaint is DISMISSED without

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prejudice for failing to state a claim. Plaintiff is granted thirty (30) days from the date

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of this Order to file a first amended complaint. If Plaintiff does not file an amended

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complaint, this action shall remain closed without further Order of the Court.

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IT IS SO ORDERED.

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DATED: February2017
HON/ROGfE EU^BENITEZ
United States District Judge

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