Dickerson v. State of California

Filing 4

ORDER: (1) Denying in Forma Pauperis Application; and (2) Denying Request for Appointment of Counsel. Plaintiff's Complaint is dismissed without prejudice and may be re-opened if Plaintiff pays the required filing fee within forty- five (45) days of the date of this Order. Signed by Judge Roger T. Benitez on 7/13/2017.(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-01360-BEN-AGS

KIZER DICKERSON,
Plaintiff,

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STATE OF CALIFORNIA,

ORDER:

v.

(1) DENYING IN FORMA PAUPERIS
APPLICATION;

Defendant.

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(2) DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

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On July 5, 2017, Plaintiff Kizer Dickerson filed a civil rights action for declaratory

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relief against the State of California. (Docket No. 1.) Instead of paying the filing fee,

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Plaintiff filed an application to proceed in forma pauperis ("IFP"). (Docket No. 2.)

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Plaintiff also filed a request for appointment of counsel. (Docket No. 3.) For the reasons

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set forth below, the Court DENIES both Plaintiffs IFP application and request for

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appointment of counsel.

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A.

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IFP Application

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 party's failure to prepay the entire fee

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only ifthe party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).

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3:17-cv-01360-BEN-AGS

. .)
Under 28 U.S.C. § 1915(a)(l),

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[A]ny 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 receives $2,600.00 in income per month, which consists of his self-

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employment income ($1,700.00) and public assistance ($900.00). (Docket No. 2

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2.) He pays for rent, utilities, food and other monthly expenses amounting to
at~

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approximately $3,298.00 per month. (Id.

8.) Although Defendant reports that his

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expenses exceed his income, the information provided in his affidavit does not reflect an

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inability to pay the fee to pursue the action. Therefore, the IFP application is DENIED.

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B.

Request for Appointment of Counsel

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Courts have discretion to appoint counsel for indigent civil litigants upon a

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showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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Cir. 1991); Bradshaw v. Zoological Soc. ofSan Diego, 662F.2d1301, 1318 (9th Cir.

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1981 ). "A finding of exceptional circumstances requires an evaluation of both the

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likelihood of success on the merits and the ability of the petitioner to articulate his claims

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prose in light of the complexity of the legal issues involved." Terrell, 935 F.2d at 1017

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(9th Cir. 1991) (internal citations omitted); see also Bradshaw, 662 F.2d at 1318.

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"Neither of these factors is dispositive and both must be viewed together before reaching

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a decision." Terrell, 935 F.2d at 1017 (internal citations omitted).

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

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Plaintiffs Complaint essentially seeks a declaration that California Family Code section

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3030 ("Section 3030") violates parental and due process rights under the Fourteenth

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Amendment. (See generally Docket No. 1, Complaint.) Section 3030 generally prohibits

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the placing of a child into the custody of a person who is required to be registered as a

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3: l 7-cv-01360-BEN-AGS

1 sex offender under California Penal Code section 290, due to a criminal conviction of
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certain crimes involving a minor victim. Cal. Fam. Code § 3030. Plaintiff asserts that

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because he "cannot find a case in which this law would be reasonable," he "requests [this

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Court] analyze and confirm." (Compl. at p. 1.) However, Plaintiff has not alleged facts

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to demonstrate he has standing to bring such a claim. See Lujan v. Deft. of Wildlife, 504

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U.S. 555, 560 (1992) (a plaintiff invoking federal jurisdiction bears the burden of

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establishing the three elements of standing: 1) that the plaintiff has suffered an "injury in

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fact"; 2) that there is a causal connection between the plaintiffs injury and the conduct

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complained of traceable to the defendant; and 3) that is likely, i.e. not merely speculative,

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that the plaintiff's injury will be "redressed by a favorable decision") (internal citations

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omitted). As a result, it is not clear the Court has jurisdiction to hear his claim.

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Moreover, Plaintiff fails to demonstrate an inability to represent himself beyond

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the ordinary burdens encountered by plaintiffs representing themselves prose, or that he

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has made a good faith effort to obtain counsel to represent him. See Garcia v. Smith, No.

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10-cv-1187, 2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012) ("Merely alleging

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indigence is insufficient to entitle him to appointed counsel; he must also demonstrate

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that he made a good faith effort, but was unable, to obtain counsel."). Therefore, the

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Court finds that the exceptional circumstances required for the appointment of counsel

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are not present. Plaintiffs Motion is DENIED.

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CONCLUSION

Plaintiff's IFP application and request for appointment of counsel are DENIED.

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Plaintiff's Complaint is DISMISSED without prejudice and may be re-opened if

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Plaintiff pays the required filing fee within forty-five (45) days of the date of this Order.

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IT IS SO ORDERED.

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DATED: July/fl, 2017
United States District Court Judge
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3:17-cv-01360-BEN-AGS