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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CAROL THOMAS,

Case No.: 3:17-cv-0941-GPC-MDD
Plaintiff,

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v.

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ORDER:

ELDERHELP OF SAN DIEGO

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1) GRANTING PLAINTIFF’S
REQUEST TO PROCEED IN
FORMA PAUPERIS;

Defendant.

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2) DISMISSING CIVIL ACTION
FOR FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. §
1915(e)(2)(B)(ii)

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3) DENYING AS MOOT
PLAINTIFF’S REQUEST FOR
COURT-APPOINTED COUNSEL

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AND

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4) GRANTING PLAINTIFF LEAVE
TO AMEND WITHIN 30 DAYS

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[ECF Nos. 1, 2, 3.]

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3:17-cv-0941-GPC-MDD

On May 8, 2017, Plaintiff Carol Thomas (“Plaintiff”), proceeding pro se, filed a

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Complaint alleging gross negligence against ElderHelp of San Diego (“Defendant”).

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(Dkt. No. 1.) Plaintiff concurrently filed a motion to proceed in forma pauperis (“IFP”)

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and a motion for court-appointed counsel. (Dkt. Nos. 2, 3.) For the reasons set forth

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below, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis,

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DISMISSES Plaintiff’s Complaint for failure to state a claim pursuant to 28 U.S.C. §

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1915(e)(2)(B)(ii), and DENIES AS MOOT Plaintiff’s request for court-appointed

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counsel.

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DISCUSSION
I.

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Motion for Leave to Proceed In Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit

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demonstrating his inability to pay the filing fee, and the affidavit must include a complete

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statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). The facts as to the affiant’s

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poverty must be stated “with some particularity, definiteness, and certainty.” United

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States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). When a plaintiff moves to

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proceed IFP, the court first “grants or denies IFP status based on the plaintiff’s financial

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resources alone and then independently determines whether to dismiss the complaint”

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pursuant to 28 U.S.C. § 1915(e)(2) (“§ 1915(e)(2)”). Franklin v. Murphy, 745 F.2d 1221,

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1226 n.5 (9th Cir. 1984). IFP status may be acquired and lost during the course of

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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.
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3:17-cv-0941-GPC-MDD

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litigation. Wilson v. Dir. of Div. of Adult Insts., No. CIV S–06–0791, 2009 WL 311150,

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at *2 (E.D. Cal. Feb. 9, 2009) (internal citation omitted).

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Here, Plaintiff has supplied an affidavit in support of her application to proceed in

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forma pauperis. (Dkt. No. 2.) Plaintiff declares that she receives $330.72 in

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supplemental security income and $585 in social security benefits per month, resulting in

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a total monthly income of $915.72. (Id. at 2.) Plaintiff declares that her monthly

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expenses total $930. (Id. at 4.)2 Plaintiff thus has a monthly deficit of $14.28 per month.

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Further, Plaintiff declares that she is $15,000 in debt. (Dkt. No. 3 at 6.)

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In light of Plaintiff’s monthly income and economic circumstances, the Court

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concludes that Plaintiff cannot afford the filing fee. Accordingly, the Court GRANTS

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Plaintiff’s request to proceed in forma pauperis.

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II.

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Sua Sponte Screening
Notwithstanding Plaintiff’s IFP status, the Court must review complaints filed by

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all persons proceeding IFP and must sua sponte dismiss any complaint, or any portion of

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a complaint, which is frivolous, malicious, fails to state a claim, or seeks damages from

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defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d

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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

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the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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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.)
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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

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”).

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However, while the court “ha[s] an obligation where the Plaintiff is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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Plaintiff the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of

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the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Here, Plaintiff claims that the Court has jurisdiction to hear her case under 28

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U.S.C. § 1343(a)(3). (Dkt. No. 1 at 1.) This statute serves as the jurisdictional

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counterpart to 42 U.S.C. § 1983 (“§ 1983”). Lynch v. Household Fin. Corp., 405 U.S.

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538, 540 (1972). To state a claim for relief under § 1983, “plaintiffs must plead that (1)

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the defendants acting under color of state law (2) deprived plaintiffs of rights secured by

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the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th

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Cir. 1986).

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First, Plaintiff fails to show that Defendant acted “under color of state law.” Am.

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Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). Section 1983 claims are

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directed only to acts “under color of state law” or state action and exclude from its

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purview merely private conduct, no matter how discriminatory or wrongful. Id.; Marsh

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v. Cty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012). In the absence of allegations

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of fact showing a defendant acted under color of state law, a complaint should be

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dismissed. See Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir.
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3:17-cv-0941-GPC-MDD

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2002), as amended on denial of reh’g and reh’g en banc (Aug. 23, 2002) (affirming the

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district court’s dismissal of a complaint for failure to state a claim where the plaintiff

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failed to demonstrate that the defendants engaged in state action). Even broadly

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construing the Complaint as asserting a § 1983 claim, Plaintiff has not shown that

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Defendant acted under color of state law. Plaintiff solely indicates that Defendant is a

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non-profit organization. (Dkt. No. 1 at 1.)

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Further, Plaintiff has failed to allege that Defendant has violated a right protected

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by the federal Constitution or created by federal statute. See Gibson v. United States, 781

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F.2d 1334, 1338 (9th Cir. 1986). Section 1983 claims do not cover conduct that only

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violates state law. See Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001). Plaintiff asserts

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a gross negligence claim, which involves a violation of state law. (Dkt. No. 1 at 1.) See

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Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 (Cal. 1996). The federal court is one of

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limited jurisdiction. Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 997 (9th Cir.

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2007). It possesses only that power authorized by the Constitution or a statute. See

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Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Thus, Plaintiff’s

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Complaint fails to allege a violation of a federally secured right that can be entertained by

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this Court.

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Accordingly, because the Complaint fails to allege that Defendant deprived

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Plaintiff of a federal right while acting under color of state law, the Court DISMISSES

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Plaintiff’s claim.

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III.

Motion to Appoint Counsel

Plaintiff concurrently filed a motion seeking court-appointed counsel. (Dkt. No.

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3.) In light of the Court’s dismissal of this civil action for failure to state a claim

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court DENIES AS MOOT Plaintiff’s

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motion for court-appointed counsel.

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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
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3:17-cv-0941-GPC-MDD

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which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and DENIES AS

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MOOT Plaintiff’s request for court-appointed counsel.

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The Court GRANTS Plaintiff thirty (30) days leave from the date of this Order in

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which to re-open the case. To re-open the case, Plaintiff shall, within thirty days of this

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Order:

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1. File an Amended Complaint which cures all of the deficiencies of pleading

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described in this Order. If Plaintiff elects to file an Amended Complaint, it must

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be complete by itself without reference to the original pleading. See S.D. CAL.

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CIV. LR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

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1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”);

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Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

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dismissed with leave to amend which are not re-alleged in an amended pleading

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may be “considered waived if not repled.”).

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2. If Plaintiff fails to file an Amended Complaint within the time provided, this civil

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action will remain dismissed based both on Plaintiff’s failure to state a claim upon

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which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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1915A(b)(1), and her failure to prosecute in compliance with a Court order

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requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005)

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(“If a plaintiff does not take advantage of the opportunity to fix his complaint, a

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district court may convert the dismissal of the complaint into dismissal of the entire

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action.”).

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IT IS SO ORDERED.

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Dated: May 26, 2017

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3:17-cv-0941-GPC-MDD