Arnold v. Arnold et al

Filing 3

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; (2) Denying Request for Appointment of Counsel; and (3) Dismissing Complaint for Failure to State a Claim. Signed by Judge Roger T. Benitez on 10/19/2017.(All non-registered users served via U.S. Mail Service)(knb)(jrd)

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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-2089-BEN-JMA

LEAHY. ARNOLD,

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Plaintiff,

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ROBERT L. ARNOLD, MARY
MITCHELL, MELINDA R. MEEKEN,
JOHN E. PHILLIPS,

ORDER:

v.

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Defendants.

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
(2) DENYING REQUEST FOR
APPOINTMENT OF COUNSEL; and

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(3) DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. §
1915(e)(2)(B)(ii)

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Plaintiff Leah Y. Arnold, proceeding prose, has filed a complaint with this Court.

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She has not paid the civil filing fee required to commence this action, but rather has

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submitted an application to proceed in forma pauperis ("IFP").

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I.

Motion to Proceed IFP

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Pursuant to 28 U.S.C. § 1915(a), the court may authorize the commencement, of any

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suit without payment of fees ifthe plaintiff submits an affidavit, including a statement of

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all of his or her assets, showing that he or she is unable to pay filing fees or costs. "An

3:17-cv-2089-BEN-JMA

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affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot

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pay the court costs and still afford the necessities oflife." Escobedo v. Applebees, 787 F.3d

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1226, 1234 (9th Cir. 2015). The granting or denial of leave to proceed in forma pauperis

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in civil cases is within the sound discretion of the trial court. Venerable v. Meyers, 500

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F.2d 1215, 1216 (9th Cir. 1974) (citations omitted).

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Here, Plaintiff states that she is unemployed and has no sources of income. In the

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past twelve months, she received $500 from her mother for expenses and rent. Plaintiffs

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submission sufficiently shows that she lacks the financial resources to pay the filing fee.

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Accordingly, her motion to proceed IFP is GRANTED.

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II.

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Request for Appointment of Counsel

Plaintiffs IFP application includes a request for appointment of counsel. Courts

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have discretion, pursuant to 28 U.S.C. § 1915(e)(l) (1996), to appoint counsel for

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indigent civil litigants upon a showing of exceptional circumstances. "A finding of

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exceptional circumstances requires an evaluation of both the likelihood of success on the

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merits and the ability of the petitioner to articulate his claims prose in light of the

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complexity of the legal issues involved." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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Cir. 1991) (internal citations omitted). "Neither of these factors is dispositive and both

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must be viewed together before reaching a decision." Id. (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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Moreover, Plaintiff fails to demonstrate an inability to represent herself beyond the

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ordinary burdens encountered by plaintiffs representing themselves pro se. Therefore,

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

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counsel are not present. Plaintiffs request is DENIED.

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III.

Sua Sponte Screening

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Any complaint filed pursuant to the IFP provisions of28 U.S.C. § 1915(a) is

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subject to a mandatory and sua sponte review by the Court. The Court must dismiss the

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complaint, or any portion thereof, that is frivolous, malicious, fails to state a claim upon

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which relief may be granted, or seeks monetary relief from a defendant immune from
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suit. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 2013 F.3d 1122, 1126-27 (9th Cir. 2000)

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(en bane).

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Plaintiff sues under 42 U.S.C. § 1983 for violation of her constitutional rights

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related to "familial association; due process; liberty interest; cruel and unusual

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punishment; privacy; religion; illegal search & seizure; false arrest (false imprisonment);

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malicious prosecution; [and] unreasonable/excessive force." (Compl. at 3). Her

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complaint is based on events that occurred in 2011, 2012, and 2013 concerning

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allegations of child sexual abuse. Plaintiff's children have been removed from her

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custody and placed with their father, Defendant Robert L. Arnold. Plaintiff alleges that

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the "current custody agreement is based entirely on fraud," that the "children should

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never have been removed," and that Robert Arnold has sexually abused her children. She

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seeks "immediate removal of the children from the sex offender R. Arnold," a "trial by

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jury on child sexual abuse charges against Robert L. Arnold and child abuse charges

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against the other Defendants," and $1 million in damages for each victim for each year of

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separation.

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42 U.S.C. § 1983 authorizes claims but does not provide a limitations period. In

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the absence of a federal limitations period, federal district courts apply the forum state's

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statute of limitations for analogous claims. Butler v. Nat'! Cmty. Renaissance of Cal.,

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766 F.3d 1191, 1198 (9th Cir. 2014). Claims arising under§ 1983 are considered

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personal injury actions for statute of limitations purposes. Wilson v. Garcia, 471 U.S.

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261, 275 (1985). Thus, Plaintiff's§ 1983 claims are governed by California's two-year

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limitations period for personal injury actions. Cal. Civ. P. Code§ 335.1; Butler, 766 F.3d

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at 1198.

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In this case, Plaintiff alleges that the last event that gave rise to her claims occurred

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in September 2013. The two-year limitations period expired in September 2015. In other

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words, her current claims are untimely and Plaintiff has failed to state a claim upon which

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relief can be granted. Accordingly, Plaintiff's complaint is subject to sua sponte

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dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii).
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IV.

Conclusion
For the above reasons, Plaintiffs motion to proceed IFP is GRANTED, her

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request for appointment of counsel is DENIED, and her complaint is DISMISSED for

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failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

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IT IS SO ORDERED.

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Dated: Octob#2017

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