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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Richard Zakosky, Case No.: 17cv1373-JAH (BGS) Plaintiff, 11 12 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. 13 14 Department of Veterans Affairs, Defendant. 15 16 17 18 19 20 INTRODUCTION 21 22 Pending before this Court are Plaintiff’s motions to proceed in forma pauperis and 23 motion to appoint counsel. Doc. Nos. 2, 3. For the reasons set forth below, the Court 24 DENIES both Plaintiff’s motion to proceed in forma pauperis and Plaintiff’s request for 25 appointment of counsel. 26 // 27 // 28 // 1 17cv1373-JAH (BGS) 1 BACKGROUND On July 6, 2017, Plaintiff filed a complaint (“Complaint”) against the Department 2 3 of Veteran Affairs. Doc. No. 1. On the same day, Plaintiff also filed his motion to 4 proceed in forma pauperis and requested appointment of counsel. Doc. Nos. 2, 3. 5 6 DISCUSSION I. In Forma Pauperis 7 a. Ability to Pay 8 9 i. Legal Standard All parties instituting any civil action, suit, or proceeding in a district court of the 10 United States, except an application for writ of habeas corpus, must pay a filing fee of 11 $400. See 28 U.S.C. § 1914 (a). A court may authorize the commencement of a suit 12 without prepayment of fees if the plaintiff submits an affidavit, including a statement of 13 all his or her assets, showing that he or she is unable to pay the fees. See 28 U.S.C. § 14 1915(a). 15 16 ii. Analysis In support of his application to proceed in forma pauperis, Plaintiff presents a 17 declaration indicating he is currently unemployed but receives $1,000 a month in 18 retirement payments. Doc. No. 2 at pg. 2. Plaintiff posits he has zero funds in his 19 checking account and owns a vehicle worth $500. Id. at pgs. 2-3. Plaintiff indicates 20 monthly basic-living costs (including rent, food, clothing, and medical expenses) that 21 amount to $1,120. Id. at pg. 4. Based on Plaintiff’s declaration, the Court finds Plaintiff 22 has sufficiently shown he is unable to pay the fees required to commence his suit. 23 24 25 b. Screening i. Legal Standard In forma pauperis notwithstanding, the Court is obligated to review a complaint 26 filed in forma pauperis and dismiss the action if it is “frivolous or malicious; fails to state 27 a claim on which relief may be granted; or seeks monetary relief against a defendant who 28 is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 2 17cv1373-JAH (BGS) 1 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 2 prisoners.”). 3 ii. Analysis After a careful review, the Court finds that Plaintiff’s complaint is frivolous and 4 5 void of any plausible claims for relief. Plaintiff does not present actionable claims 6 beyond stating there was wrongdoing at the Department of Veterans Affairs and that his 7 complaints were ignored by superiors. Doc. No. 1 at pgs. 2-3. Plaintiff fails to state any 8 plausible claims for relief. Based on the allegations in his Complaint, the Court finds 9 Plaintiff has not met the screening standard required to proceed in forma pauperis. 10 11 II. Request for Appointment of Counsel a. Legal Standard 12 There is no constitutional right to be represented by counsel in a civil action. 13 Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); See Hernandez v. 14 Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989). Under 28 U.S.C. § 1915 (e) (1), 15 however, district courts may appoint counsel for indigent litigants under “exceptional 16 circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting 17 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Determining whether 18 “exceptional circumstances” exist requires a court to evaluate (1) the likelihood of 19 success on the merits, and (2) the ability of the petitioner to articulate his claims pro se in 20 light of the complexity of the issues. Id. “Neither of these issues is dispositive and both 21 must be viewed together before reaching a decision.” Id. 22 23 b. Analysis Here, while Plaintiff’s indigence and corresponding inability to pay for counsel has 24 been established, Plaintiff has failed to meet other requirements. Plaintiff fails to state 25 grounds that would allow this Court to determine whether exceptional circumstances 26 exist. Plaintiff fails to argue why he would succeed on the merits. Plaintiff also fails to 27 articulate his claims beyond stating there was wrongdoing at the Department of Veterans 28 Affairs and that his complaints were ignored by superiors. Doc. No. 1 at pgs. 2-3. 3 17cv1373-JAH (BGS) 1 Plaintiff’s statement neither expresses his likelihood of success on the merits nor 2 articulate the complexity of the issues involved. 3 4 CONCLUSION Accordingly, IT IS HEREBY ORDERED: 1) Plaintiff’s motion to proceed in forma pauperis is GRANTED (doc. no. 5 6 2); 7 2) Plaintiff’s complaint is DISMISSED for failure to state a claim upon 8 which relief may be granted. The complaint is DIMISSED without 9 prejudice. Plaintiff has until November 30, 2017, to file an Amended 10 Complaint; and 3) Plaintiff’s request for appointment of counsel is DENIED without 11 12 prejudice (doc. no. 3). 13 14 15 16 17 DATED: October 24, 2017 _________________________________ JOHN A. HOUSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 4 17cv1373-JAH (BGS)

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