Smith v. Cook

Filing 5

AMENDED ORDER granting 2 Motion for Leave to Proceed in forma pauperis; Sua Sponte Dismissing for Failure to State a Claim; denying as moot 3 Motion to Appoint Counsel; the Court: (1) GRANTS Plaintiff's motion to proceed IFP; (2) sua sponte DISMISSES Plaintiff's Complaint WITHOUT PREJUDICE for failure to state a claim; and (3) DENIES AS MOOT Plaintiffs motion to appoint counsel. Pursuant to this Order, Plaintiff is granted thirty (30) days from the date of this Amended Order to fil e a new motion to proceed IFP. If Plaintiff chooses to file a new motion to proceed IFP, she must also file her proposed first amended complaint with said motion. If Plaintiff does not file a new motion to proceed IFP and proposed first amended complaint, this action will be dismissed. Signed by Judge Anthony J. Battaglia on 5/16/2017.(All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

CAROL ADRIANNE SMITH,
Plaintiff,

12
13

Case No.: 17cv00961-AJB-WVG
AMENDED ORDER:

v.
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
(Doc. No. 2)

14
15
16

ANDY COOK,
Defendant.

(2) SUA SPONTE DISMISSING FOR
FAILURE TO STATE A CLAIM;
AND
(Doc. No. 1)

17
18
19

(3) DENYING AS MOOT MOTION
TO APPOINT COUNSEL
(Doc. No. 3)

20
21
22
23
24
25
26
27
28

On May 9, 2017, Plaintiff Carol Smith (“Plaintiff”), a non-prisoner proceeding pro
se, commenced this action against Defendant Andy Cook (“Defendant”). (Doc. No. 1.) On
the same day, Plaintiff also moved to proceed in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a), and filed a motion to appoint counsel. (Doc. Nos. 2, 3.) For the following
reasons, the Court GRANTS Plaintiff’s motion to proceed IFP, sua sponte DISMISSES
1
17cv00961-AJB-WVG

1

Plaintiff’s Complaint for failure to state a claim, and DENIES AS MOOT Plaintiff’s

2

motion to appoint counsel.

3

I.

Motion to Proceed In Forma Pauperis

4

All parties instituting any civil action, suit, or proceeding in a district court of the

5

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

6

$350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay

7

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

8

1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). All actions sought

9

to be filed IFP pursuant to § 1915 must be accompanied by an affidavit, signed by the

10

applicant under penalty of perjury, that includes a statement of all assets which show

11

inability to pay initial fees or give security. S.D. CivLR 3.2.a. Here, Plaintiff states that she

12

has two children ages twenty-one and thirteen that depend on her for support. (Doc. No. 2

13

at 3.) The affidavit submitted by Plaintiff also indicates that she is employed, she receives

14

approximately $900 per month in salary and $1732 in child support, and has two checking

15

accounts with a total amount of $1000. (Id. at 1-2.) However, Plaintiff has monthly

16

expenses amounting to $3733, falling short of her monthly income by over a thousand

17

dollars. Accordingly, the Court finds that Plaintiff meets the § 1915(a) requirements and

18

GRANTS Plaintiff’s motion to proceed IFP.

19

II.

Sua Sponte Dismissal for Failure to State a Claim

20

Pursuant to 28 U.S.C. § 1915(e)(2), a court may dismiss a case at any time if it

21

determines the plaintiff has failed to state a claim on which relief may be granted. 28 U.S.C.

22

§ 1915(e)(2)(B)(ii). Here, Plaintiff’s fifty-four page Complaint alleges a variety of causes

23

of action including but not limited to: (1) irrelevant evidence; (2) willful suppression of

24

evidence; (3) failure to explain or deny; (4) conclusive presumption; (5) statute of frauds;

25

(6) breach of fiduciary duty; and (7) racial discrimination. (Doc. No. 1 at 27-34.) Though

26

the Court believes that Plaintiff’s underlying complaint stems from Defendant’s alleged

27

failure to successfully represent Plaintiff in a family court case, Plaintiff’s vague and

28

unclear pleading fails to state facts to support a cognizable constitutional or statutory cause
2
17cv00961-AJB-WVG

1

of action. Moreover, the majority of Plaintiff’s causes of action depend on the California

2

Evidence Code, which are inapplicable to Plaintiff’s instant federal case.

3

As a result, Plaintiff has not presented a sufficient basis for a cognizable claim on

4

which relief may be granted. Pursuant to § 1915(e)(2), the Court DISMISSES the

5

Complaint WITHOUT PREJUDICE for failure to state a claim.

6

III.

Motion to Appoint Counsel

7

Under 28 U.S.C. § 1915(e)(1), courts are granted discretion to appoint counsel for

8

indigent persons under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390

9

F.3d 1101, 1103 (9th Cir. 2004). As Plaintiff has yet to pay the filing fee, and her Complaint

10

has been dismissed without prejudice, the motion for counsel is DENIED AS MOOT. The

11

Court notes, however, that the Constitution provides no right of appointment of counsel in

12

a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation.

13

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981).

14

IV.

Conclusion

15

For the reasons set forth above, the Court:

16

(1) GRANTS Plaintiff’s motion to proceed IFP;

17

(2) sua sponte DISMISSES Plaintiff’s Complaint WITHOUT PREJUDICE for

18

failure to state a claim; and

19

(3) DENIES AS MOOT Plaintiff’s motion to appoint counsel.

20

Pursuant to this Order, Plaintiff is granted thirty (30) days from the date of this Amended

21

Order to file a new motion to proceed IFP. If Plaintiff chooses to file a new motion to

22

proceed IFP, she must also file her proposed first amended complaint with said motion. If

23

Plaintiff does not file a new motion to proceed IFP and proposed first amended complaint,

24

this action will be dismissed.

25

IT IS SO ORDERED.

26

7
Dated: May 16, 2016

27
28
3
17cv00961-AJB-WVG

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
17cv00961-AJB-WVG