Thomas v. Elderhelp of San Diego

Filing 4

ORDER Granting 2 Motion for Leave to Proceed in Forma Pauperis; Dismissing Civil Action; Denying as Moot Plaintiff's Request for Court-Appointed Counsel 3 ; and Granting Plaintiff Leave to Amend Within 30 Days. Signed by Judge Gonzalo P. Curiel on 5/26/17. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CAROL THOMAS, Case No.: 3:17-cv-0941-GPC-MDD Plaintiff, 12 13 v. 14 ORDER: ELDERHELP OF SAN DIEGO 15 1) GRANTING PLAINTIFF’S REQUEST TO PROCEED IN FORMA PAUPERIS; Defendant. 16 2) DISMISSING CIVIL ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 17 18 19 3) DENYING AS MOOT PLAINTIFF’S REQUEST FOR COURT-APPOINTED COUNSEL 20 21 22 AND 23 4) GRANTING PLAINTIFF LEAVE TO AMEND WITHIN 30 DAYS 24 25 [ECF Nos. 1, 2, 3.] 26 27 28 1 3:17-cv-0941-GPC-MDD On May 8, 2017, Plaintiff Carol Thomas (“Plaintiff”), proceeding pro se, filed a 1 2 Complaint alleging gross negligence against ElderHelp of San Diego (“Defendant”). 3 (Dkt. No. 1.) Plaintiff concurrently filed a motion to proceed in forma pauperis (“IFP”) 4 and a motion for court-appointed counsel. (Dkt. Nos. 2, 3.) For the reasons set forth 5 below, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis, 6 DISMISSES Plaintiff’s Complaint for failure to state a claim pursuant to 28 U.S.C. § 7 1915(e)(2)(B)(ii), and DENIES AS MOOT Plaintiff’s request for court-appointed 8 counsel. 9 10 DISCUSSION I. 11 Motion for Leave to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the 12 United States, except an application for writ of habeas corpus, must pay a filing fee of 13 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 14 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 15 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 16 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit 17 demonstrating his inability to pay the filing fee, and the affidavit must include a complete 18 statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). The facts as to the affiant’s 19 poverty must be stated “with some particularity, definiteness, and certainty.” United 20 States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). When a plaintiff moves to 21 proceed IFP, the court first “grants or denies IFP status based on the plaintiff’s financial 22 resources alone and then independently determines whether to dismiss the complaint” 23 pursuant to 28 U.S.C. § 1915(e)(2) (“§ 1915(e)(2)”). Franklin v. Murphy, 745 F.2d 1221, 24 1226 n.5 (9th Cir. 1984). IFP status may be acquired and lost during the course of 25 26 1 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-0941-GPC-MDD 1 litigation. Wilson v. Dir. of Div. of Adult Insts., No. CIV S–06–0791, 2009 WL 311150, 2 at *2 (E.D. Cal. Feb. 9, 2009) (internal citation omitted). 3 Here, Plaintiff has supplied an affidavit in support of her application to proceed in 4 forma pauperis. (Dkt. No. 2.) Plaintiff declares that she receives $330.72 in 5 supplemental security income and $585 in social security benefits per month, resulting in 6 a total monthly income of $915.72. (Id. at 2.) Plaintiff declares that her monthly 7 expenses total $930. (Id. at 4.)2 Plaintiff thus has a monthly deficit of $14.28 per month. 8 Further, Plaintiff declares that she is $15,000 in debt. (Dkt. No. 3 at 6.) 9 In light of Plaintiff’s monthly income and economic circumstances, the Court 10 concludes that Plaintiff cannot afford the filing fee. Accordingly, the Court GRANTS 11 Plaintiff’s request to proceed in forma pauperis. 12 II. 13 Sua Sponte Screening Notwithstanding Plaintiff’s IFP status, the Court must review complaints filed by 14 all persons proceeding IFP and must sua sponte dismiss any complaint, or any portion of 15 a complaint, which is frivolous, malicious, fails to state a claim, or seeks damages from 16 defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 17 1122, 1126–27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)). All complaints must contain “a short and plain statement of the claim showing that 18 19 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 20 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 21 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 22 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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.” Id. 25 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 26 27 28 2 Including the $100 worth of supplements recommended by her doctor, Plaintiff’s monthly total expenses appear to add up to $930. (Dkt. No. 2 at 4). Alternatively, Plaintiff states that her total monthly expenses add up to $1,100 in her affidavit in support of request for counsel. (Dkt No. 3 at 6.) 3 3:17-cv-0941-GPC-MDD 1 2 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “When there are well-pleaded factual allegations, a court should assume their 3 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 4 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 5 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 6 allegations of material fact and must construe those facts in the light most favorable to 7 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 8 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). 9 However, while the court “ha[s] an obligation where the Plaintiff is pro se, 10 particularly in civil rights cases, to construe the pleadings liberally and to afford the 11 Plaintiff the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 12 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 13 “supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of 14 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 Here, Plaintiff claims that the Court has jurisdiction to hear her case under 28 16 U.S.C. § 1343(a)(3). (Dkt. No. 1 at 1.) This statute serves as the jurisdictional 17 counterpart to 42 U.S.C. § 1983 (“§ 1983”). Lynch v. Household Fin. Corp., 405 U.S. 18 538, 540 (1972). To state a claim for relief under § 1983, “plaintiffs must plead that (1) 19 the defendants acting under color of state law (2) deprived plaintiffs of rights secured by 20 the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th 21 Cir. 1986). 22 First, Plaintiff fails to show that Defendant acted “under color of state law.” Am. 23 Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). Section 1983 claims are 24 directed only to acts “under color of state law” or state action and exclude from its 25 purview merely private conduct, no matter how discriminatory or wrongful. Id.; Marsh 26 v. Cty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012). In the absence of allegations 27 of fact showing a defendant acted under color of state law, a complaint should be 28 dismissed. See Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir. 4 3:17-cv-0941-GPC-MDD 1 2002), as amended on denial of reh’g and reh’g en banc (Aug. 23, 2002) (affirming the 2 district court’s dismissal of a complaint for failure to state a claim where the plaintiff 3 failed to demonstrate that the defendants engaged in state action). Even broadly 4 construing the Complaint as asserting a § 1983 claim, Plaintiff has not shown that 5 Defendant acted under color of state law. Plaintiff solely indicates that Defendant is a 6 non-profit organization. (Dkt. No. 1 at 1.) 7 Further, Plaintiff has failed to allege that Defendant has violated a right protected 8 by the federal Constitution or created by federal statute. See Gibson v. United States, 781 9 F.2d 1334, 1338 (9th Cir. 1986). Section 1983 claims do not cover conduct that only 10 violates state law. See Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001). Plaintiff asserts 11 a gross negligence claim, which involves a violation of state law. (Dkt. No. 1 at 1.) See 12 Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 (Cal. 1996). The federal court is one of 13 limited jurisdiction. Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 997 (9th Cir. 14 2007). It possesses only that power authorized by the Constitution or a statute. See 15 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Thus, Plaintiff’s 16 Complaint fails to allege a violation of a federally secured right that can be entertained by 17 this Court. 18 Accordingly, because the Complaint fails to allege that Defendant deprived 19 Plaintiff of a federal right while acting under color of state law, the Court DISMISSES 20 Plaintiff’s claim. 21 22 III. Motion to Appoint Counsel Plaintiff concurrently filed a motion seeking court-appointed counsel. (Dkt. No. 23 3.) In light of the Court’s dismissal of this civil action for failure to state a claim 24 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court DENIES AS MOOT Plaintiff’s 25 motion for court-appointed counsel. 26 27 28 CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis, DISMISSES Plaintiff’s Complaint for failure to state a claim upon 5 3:17-cv-0941-GPC-MDD 1 which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and DENIES AS 2 MOOT Plaintiff’s request for court-appointed counsel. 3 The Court GRANTS Plaintiff thirty (30) days leave from the date of this Order in 4 which to re-open the case. To re-open the case, Plaintiff shall, within thirty days of this 5 Order: 6 1. File an Amended Complaint which cures all of the deficiencies of pleading 7 described in this Order. If Plaintiff elects to file an Amended Complaint, it must 8 be complete by itself without reference to the original pleading. See S.D. CAL. 9 CIV. LR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 10 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); 11 Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 12 dismissed with leave to amend which are not re-alleged in an amended pleading 13 may be “considered waived if not repled.”). 14 2. If Plaintiff fails to file an Amended Complaint within the time provided, this civil 15 action will remain dismissed based both on Plaintiff’s failure to state a claim upon 16 which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 17 1915A(b)(1), and her failure to prosecute in compliance with a Court order 18 requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 19 (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 20 district court may convert the dismissal of the complaint into dismissal of the entire 21 action.”). 22 IT IS SO ORDERED. 23 24 Dated: May 26, 2017 25 26 27 28 6 3:17-cv-0941-GPC-MDD

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