Zakosky v. Department of Veterans Affairs

Filing 4

ORDER Granting 2 Plaintiff's Motion to Proceed in forma pauperis; (2) Dismissing complaint without prejudice and Denying 3 Plaintiff's request for Appointment of Counsel. Plaintiff has until November 30, 2017, to file an Amended Complaint. Signed by Judge John A. Houston on 10/24/2017. (All non-registered users served via U.S. Mail Service)(jpp)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Richard Zakosky,

Case No.: 17cv1373-JAH (BGS)
Plaintiff,

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ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS (Doc No. 2); DISMISSING
COMPLAINT WITHOUT PREJUDICE;
AND DENYING PLAINTIFF’S
REQUEST FOR APPOINTMENT OF
COUNSEL (Doc. No. 3)

v.

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Department of Veterans Affairs,
Defendant.

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INTRODUCTION

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Pending before this Court are Plaintiff’s motions to proceed in forma pauperis and

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motion to appoint counsel. Doc. Nos. 2, 3. For the reasons set forth below, the Court

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DENIES both Plaintiff’s motion to proceed in forma pauperis and Plaintiff’s request for

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appointment of counsel.

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17cv1373-JAH (BGS)

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BACKGROUND
On July 6, 2017, Plaintiff filed a complaint (“Complaint”) against the Department

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of Veteran Affairs. Doc. No. 1. On the same day, Plaintiff also filed his motion to

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proceed in forma pauperis and requested appointment of counsel. Doc. Nos. 2, 3.

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DISCUSSION
I.

In Forma Pauperis

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a. Ability to Pay

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i. Legal Standard
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. See 28 U.S.C. § 1914 (a). A court may authorize the commencement of a suit

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without prepayment of fees if the plaintiff submits an affidavit, including a statement of

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all his or her assets, showing that he or she is unable to pay the fees. See 28 U.S.C. §

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1915(a).

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ii. Analysis
In support of his application to proceed in forma pauperis, Plaintiff presents a

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declaration indicating he is currently unemployed but receives $1,000 a month in

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retirement payments. Doc. No. 2 at pg. 2. Plaintiff posits he has zero funds in his

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checking account and owns a vehicle worth $500. Id. at pgs. 2-3. Plaintiff indicates

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monthly basic-living costs (including rent, food, clothing, and medical expenses) that

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amount to $1,120. Id. at pg. 4. Based on Plaintiff’s declaration, the Court finds Plaintiff

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has sufficiently shown he is unable to pay the fees required to commence his suit.

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b. Screening
i. Legal Standard
In forma pauperis notwithstanding, the Court is obligated to review a complaint

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filed in forma pauperis and dismiss the action if it is “frivolous or malicious; fails to state

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a claim on which relief may be granted; or seeks monetary relief against a defendant who

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is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845,
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17cv1373-JAH (BGS)

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845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to

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prisoners.”).

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ii. Analysis
After a careful review, the Court finds that Plaintiff’s complaint is frivolous and

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void of any plausible claims for relief. Plaintiff does not present actionable claims

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beyond stating there was wrongdoing at the Department of Veterans Affairs and that his

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complaints were ignored by superiors. Doc. No. 1 at pgs. 2-3. Plaintiff fails to state any

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plausible claims for relief. Based on the allegations in his Complaint, the Court finds

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Plaintiff has not met the screening standard required to proceed in forma pauperis.

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II.

Request for Appointment of Counsel
a. Legal Standard

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There is no constitutional right to be represented by counsel in a civil action.

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Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); See Hernandez v.

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Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989). Under 28 U.S.C. § 1915 (e) (1),

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however, district courts may appoint counsel for indigent litigants under “exceptional

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circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Determining whether

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“exceptional circumstances” exist requires a court to evaluate (1) the likelihood of

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success on the merits, and (2) the ability of the petitioner to articulate his claims pro se in

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light of the complexity of the issues. Id. “Neither of these issues is dispositive and both

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must be viewed together before reaching a decision.” Id.

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b. Analysis
Here, while Plaintiff’s indigence and corresponding inability to pay for counsel has

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been established, Plaintiff has failed to meet other requirements. Plaintiff fails to state

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grounds that would allow this Court to determine whether exceptional circumstances

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exist. Plaintiff fails to argue why he would succeed on the merits. Plaintiff also fails to

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articulate his claims beyond stating there was wrongdoing at the Department of Veterans

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Affairs and that his complaints were ignored by superiors. Doc. No. 1 at pgs. 2-3.
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17cv1373-JAH (BGS)

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Plaintiff’s statement neither expresses his likelihood of success on the merits nor

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articulate the complexity of the issues involved.

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CONCLUSION
Accordingly, IT IS HEREBY ORDERED:
1) Plaintiff’s motion to proceed in forma pauperis is GRANTED (doc. no.

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2);

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2) Plaintiff’s complaint is DISMISSED for failure to state a claim upon

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which relief may be granted. The complaint is DIMISSED without

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prejudice. Plaintiff has until November 30, 2017, to file an Amended

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Complaint; and
3) Plaintiff’s request for appointment of counsel is DENIED without

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prejudice (doc. no. 3).

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DATED:

October 24, 2017
_________________________________
JOHN A. HOUSTON
United States District Judge

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17cv1373-JAH (BGS)