Ross v. Padres LP et al

Filing 10

ORDER:(1) Granting Plaintiff's Motion to Proceed in Forma Pauperis Pursuant to 28 U.S.C. § 1915(a), (2) Denying Without Prejudice Plaintiff's Motion to Appoint Counsel, and (3) Directing U.S. Marshal to Effect Service of Summons and Co mplaint Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). The Court grants plaintiff's IFP motion 9 and denies as moot Plaintiff's previous 7 IFP motion. Signed by Judge Janis L. Sammartino on 1/3/2018. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VAN J. ROSS,

Case No.: 17-CV-1676 JLS (JLB)
Plaintiff,

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ORDER: (1) GRANTING
PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a),
(2) DENYING MOTION TO
APPOINT COUNSEL, AND (3)
DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF SUMMONS
AND COMPLAINT PURSUANT TO
28 U.S.C. § 1915(d) AND FED. R. CIV.
P. 4(c)(3)

v.
PADRES LP, et al.,

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Defendants.

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(ECF No. 9)

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Presently before the Court is Plaintiff Van J. Ross’s Motion to Proceed In Forma
Pauperis (“IFP”). (“IFP MTN,” ECF No. 9.)
IFP Motion

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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). An action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to

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28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A

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federal court may authorize the commencement of an action without the prepayment of

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fees if the party submits an affidavit, including a statement of assets, showing that he is

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unable to pay the required filing fee. 28 U.S.C. § 1915(a).

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In the present case, the Court denied Plaintiff’s previous IFP motion due to

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accounting irregularities in his Motions.1 (ECF Nos. 4, 6). The Court gave Plaintiff thirty

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days from the date of the previous Order to refile a motion to proceed IFP. Plaintiff

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timely filed his third IFP Motion, (ECF No. 7), and then filed an additional IFP Motion,

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(ECF No. 9). The Court considers Plaintiff’s most recent IFP Motion, (ECF No. 9), as it

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contains his most recent financial accounting.

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Plaintiff filed an affidavit indicating that he has received an average monthly

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income of $1,119.882 over the past twelve months. (IFP MTN 2.)3 Plaintiff’s expected

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income next month is $990.4 (Id.) Plaintiff also states that during his most recent

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employment he earned $122 in September and $243.88 in October. (Id.)

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Plaintiff also has approximately $357 in checking and savings accounts, (id. at 2),

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and has two cars valued at $2,016. (Id. at 3.) Plaintiff’s monthly expenses are listed as

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$2,273. (Id. at 5.) This revised monthly expense estimate is close to his previous

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estimate, (see ECF No. 7, at 5). Plaintiff states that he does not expect his employment

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situation to change in the next 12 months. (IFP MTN 5.)

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For example, in a previous IFP Motion Plaintiff listed his average monthly income as $15,620. (ECF
No. 6, at 2.) The Court assumed this was in error, but requested Plaintiff to clarify his affidavit, which
he has done.
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Plaintiff lists his total monthly income as $876, but fails to add $243.88 in employment income.
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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of
each page.
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Plaintiff lists next month’s expected income as $876, but fails to add $114 in expected employment
income.
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In sum, Plaintiff estimated expenses exceed his assets and expected income. The

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Court finds Plaintiff is unable to pay the filing fee. Accordingly, the Court GRANTS

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Plaintiff’s Motion to Proceed IFP. (ECF No. 9.)

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Motion to Appoint Counsel
Plaintiff’s Complaint includes a request to appoint counsel without any
accompanying explanation. (“Compl.” 3, ECF No. 1.)

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There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc.

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Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts

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have some limited discretion to “request” that an attorney represent an indigent civil

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litigant. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). This

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discretion may be exercised only under “exceptional circumstances.” Id.; see also Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances

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requires “an evaluation of the likelihood of the plaintiff’s success on the merits and an

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evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of

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the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)).

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Here, Plaintiff provides no justification as to how his case meets the exceptional

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circumstances. The Court finds Plaintiff has not met either element for exceptional

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circumstances. First, the Court does not have enough information to evaluate Plaintiff’s

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likelihood for success on the merits.

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circumstances in one page. (ECF No. 1, at 2.) At this stage, there is simply not enough

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information to assess likelihood of success on the merits. Second, the Court finds

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Plaintiff has not met the second element of Plaintiff’s ability to articulate his claims. This

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appears to be a straightforward ADA reasonable accommodation case.

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apparently has articulated his claim before the EEOC. (See id.) In light of the nature of

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the legal issues, the Court cannot say Plaintiff is unable to articulate his claims.

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Therefore, the Court DENIES WITHOUT PREJUDICE Plaintiff’s request for counsel.

Plaintiff’s Complaint describes his facts and

Plaintiff

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Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)

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and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which

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relief may be granted,” or “seeks monetary relief against a defendant who is immune

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from relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845

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

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prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting

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that 28 U.S.C. § 1915(e) “not only permits but requires a district court to dismiss an in

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forma pauperis complaint that fails to state a claim”).

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As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §

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1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP

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provisions of § 1915 make and rule on its own motion to dismiss before directing the

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Marshal to effect service pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R.

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Civ. P. 4(c)(3); Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL

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139925, at *1 (S.D. Cal. Jan. 9, 2013).

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All complaints must contain a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a

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complaint states a plausible claim is context-specific, requiring the reviewing court to

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draw on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly,

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550 U.S. at 556).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement of relief.”

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Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court

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must accept as true all allegations of material fact and must construe those facts in the

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light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
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2000); see also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii)

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parallels the language of Federal Rule of Civil Procedure 12(b)(6).”).

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“While factual allegations are accepted as true, legal conclusions are not.”

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Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June

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28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth

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in a complaint if the plaintiff has not supported her contentions with facts. Id. (citing

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Iqbal, 556 U.S. at 679). While the court has an “obligation . . . , where the petitioner is

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pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford

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the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th

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Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc))

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(internal quotation marks omitted), it may not “supply essential elements of the claim that

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were not initially pled,” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th

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Cir. 1982).

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Plaintiff alleges that he requested a reasonable accommodation from his employer,

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the San Diego Padres, to use his cane. (Compl. 2.) Plaintiff was told by his supervisor

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that he would need a doctor’s note, which he supplied. (Id.) Plaintiff then requested a

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leave of absence and upon his return Plaintiff was told he needed to submit a medical

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clearance from his doctor. (Id.) Thereafter, a formal hearing appears to have occurred

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that resulted in the Padres terminating Plaintiff’s employment. (Id.)

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To state a prima facie case of discrimination under the ADA, a plaintiff “must

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show that she: (1) is disabled; (2) is qualified; and (3) suffered an adverse employment

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action because of her disability.” Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080,

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1087 (9th Cir. 2001). Under the ADA, a “qualified individual is an individual with a

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disability who, with or without reasonable accommodation, can perform the essential

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functions of the employment position that such individual holds or desires.” Bates v.

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United Parcel Serv., Inc., 511 F.3d 974, 989 (9th Cir. 2007). Determining whether a

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plaintiff is a “qualified individual” requires a two-part test. First, the qualified person
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must possess the requisite skills, experience, education, and other qualifications for the

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employment position. See Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001).

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Second, the individual must be capable of performing “essential functions.” Id. Essential

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functions are fundamental job duties of the employment position . . . not include[ing] the

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marginal functions of the position.” Id.

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Here, the Court finds Plaintiff meets the screening threshold. Plaintiff requires a

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cane to perform the essential functions of his job. His use of a cane may be a reasonable

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accommodation. Plaintiff alleges he was fired as a result of his disability. At this initial

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pleading stage and considering Plaintiff’s pro se status, the Court finds Plaintiff meets the

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requirements of 28 U.S.C. § 1915(e)(2) and § 1915A(b).

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CONCLUSION
Good cause appearing, the Court:
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GRANTS Plaintiff’s IFP Motion, (ECF No. 9), and DENIES AS MOOT

Plaintiff’s previous IFP Motion, (ECF No. 7);
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DENIES WITHOUT PREJUDICE Plaintiff’s Motion for Counsel, (ECF

No. 1);
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DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF

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No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each

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Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this

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Order, a certified copy of his Complaint, and the summons so that he may serve the

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Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285’s

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as completely and accurately as possible, and return them to the United States Marshal

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according to the instructions the Clerk provides in the letter accompanying his IFP

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package;

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4.

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ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

upon the Defendants as directed by Plaintiff on the USM Form 285’s provided to him.

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All costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d);

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Fed. R. Civ. P. 4(c)(3);

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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon the named Defendants or, if appearance has been entered by counsel, upon

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Defendants’ counsel, a copy of every further pleading, motion, or other document

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submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must

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include with every original document he seeks to file with the Clerk of the Court, a

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certificate stating the manner in which a true and correct copy of that document has been

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was served on Defendants or their counsel, and the date of that service. See Civ. Local R.

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5.2.

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Any document received by the Court which has not been properly filed with the Clerk or

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which fails to include a Certificate of Service upon Defendants may be disregarded.

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IT IS SO ORDERED.
Dated: January 3, 2018

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