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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-, ' ) 1 F \ Lff D 2 I JUL 11' A11 ': ,,~ I 3 91:1Pfl~d!,S. PISTRlCT ~QUJ;f :tG-~'r1t~~tr~1s-.-I"RlC·l oftt~·ktf 01'l"Pn 4 DE<':Ul q:y• 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 Case No.: 3:17-cv-01360-BEN-AGS KIZER DICKERSON, Plaintiff, 12 13 14 STATE OF CALIFORNIA, ORDER: v. (1) DENYING IN FORMA PAUPERIS APPLICATION; Defendant. 15 (2) DENYING REQUEST FOR APPOINTMENT OF COUNSEL 16 17 On July 5, 2017, Plaintiff Kizer Dickerson filed a civil rights action for declaratory 18 19 relief against the State of California. (Docket No. 1.) Instead of paying the filing fee, 20 Plaintiff filed an application to proceed in forma pauperis ("IFP"). (Docket No. 2.) 21 Plaintiff also filed a request for appointment of counsel. (Docket No. 3.) For the reasons 22 set forth below, the Court DENIES both Plaintiffs IFP application and request for 23 appointment of counsel. 24 A. 25 IFP Application All parties instituting any civil action in a district court must pay a filing fee. 28 26 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee 27 only ifthe party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). 28 3:17-cv-01360-BEN-AGS . .) Under 28 U.S.C. § 1915(a)(l), 1 [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. 2 3 4 5 6 7 Plaintiff receives $2,600.00 in income per month, which consists of his self- 8 employment income ($1,700.00) and public assistance ($900.00). (Docket No. 2 9 at~~ 2.) He pays for rent, utilities, food and other monthly expenses amounting to at~ 1- 10 approximately $3,298.00 per month. (Id. 8.) Although Defendant reports that his 11 expenses exceed his income, the information provided in his affidavit does not reflect an 12 inability to pay the fee to pursue the action. Therefore, the IFP application is DENIED. 13 B. Request for Appointment of Counsel 14 Courts have discretion to appoint counsel for indigent civil litigants upon a 15 showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 16 Cir. 1991); Bradshaw v. Zoological Soc. ofSan Diego, 662F.2d1301, 1318 (9th Cir. 17 1981 ). "A finding of exceptional circumstances requires an evaluation of both the 18 likelihood of success on the merits and the ability of the petitioner to articulate his claims 19 prose in light of the complexity of the legal issues involved." Terrell, 935 F.2d at 1017 20 (9th Cir. 1991) (internal citations omitted); see also Bradshaw, 662 F.2d at 1318. 21 "Neither of these factors is dispositive and both must be viewed together before reaching 22 a decision." Terrell, 935 F.2d at 1017 (internal citations omitted). 23 At this time, the Court cannot say there is any likelihood of success on the merits. 24 Plaintiffs Complaint essentially seeks a declaration that California Family Code section 25 3030 ("Section 3030") violates parental and due process rights under the Fourteenth 26 Amendment. (See generally Docket No. 1, Complaint.) Section 3030 generally prohibits 27 the placing of a child into the custody of a person who is required to be registered as a 28 2 3: l 7-cv-01360-BEN-AGS 1 sex offender under California Penal Code section 290, due to a criminal conviction of 2 certain crimes involving a minor victim. Cal. Fam. Code § 3030. Plaintiff asserts that 3 because he "cannot find a case in which this law would be reasonable," he "requests [this 4 Court] analyze and confirm." (Compl. at p. 1.) However, Plaintiff has not alleged facts 5 to demonstrate he has standing to bring such a claim. See Lujan v. Deft. of Wildlife, 504 6 U.S. 555, 560 (1992) (a plaintiff invoking federal jurisdiction bears the burden of 7 establishing the three elements of standing: 1) that the plaintiff has suffered an "injury in 8 fact"; 2) that there is a causal connection between the plaintiffs injury and the conduct 9 complained of traceable to the defendant; and 3) that is likely, i.e. not merely speculative, 10 that the plaintiff's injury will be "redressed by a favorable decision") (internal citations 11 omitted). As a result, it is not clear the Court has jurisdiction to hear his claim. 12 Moreover, Plaintiff fails to demonstrate an inability to represent himself beyond 13 the ordinary burdens encountered by plaintiffs representing themselves prose, or that he 14 has made a good faith effort to obtain counsel to represent him. See Garcia v. Smith, No. 15 10-cv-1187, 2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012) ("Merely alleging 16 indigence is insufficient to entitle him to appointed counsel; he must also demonstrate 17 that he made a good faith effort, but was unable, to obtain counsel."). Therefore, the 18 Court finds that the exceptional circumstances required for the appointment of counsel 19 are not present. Plaintiffs Motion is DENIED. 20 21 CONCLUSION Plaintiff's IFP application and request for appointment of counsel are DENIED. 22 Plaintiff's Complaint is DISMISSED without prejudice and may be re-opened if 23 Plaintiff pays the required filing fee within forty-five (45) days of the date of this Order. 24 IT IS SO ORDERED. 25 26 27 28 DATED: July/fl, 2017 United States District Court Judge 3 3:17-cv-01360-BEN-AGS

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