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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:17-cv-2089-BEN-JMA LEAHY. ARNOLD, 12 Plaintiff, 13 14 ROBERT L. ARNOLD, MARY MITCHELL, MELINDA R. MEEKEN, JOHN E. PHILLIPS, ORDER: v. 15 16 Defendants. (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (2) DENYING REQUEST FOR APPOINTMENT OF COUNSEL; and 17 (3) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 18 19 20 21 22 Plaintiff Leah Y. Arnold, proceeding prose, has filed a complaint with this Court. 23 She has not paid the civil filing fee required to commence this action, but rather has 24 submitted an application to proceed in forma pauperis ("IFP"). 25 I. Motion to Proceed IFP 26 Pursuant to 28 U.S.C. § 1915(a), the court may authorize the commencement, of any 27 suit without payment of fees ifthe plaintiff submits an affidavit, including a statement of 28 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 1 affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot 2 pay the court costs and still afford the necessities oflife." Escobedo v. Applebees, 787 F.3d 3 1226, 1234 (9th Cir. 2015). The granting or denial of leave to proceed in forma pauperis 4 in civil cases is within the sound discretion of the trial court. Venerable v. Meyers, 500 5 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 6 Here, Plaintiff states that she is unemployed and has no sources of income. In the 7 past twelve months, she received $500 from her mother for expenses and rent. Plaintiffs 8 submission sufficiently shows that she lacks the financial resources to pay the filing fee. 9 Accordingly, her motion to proceed IFP is GRANTED. 10 II. 11 Request for Appointment of Counsel Plaintiffs IFP application includes a request for appointment of counsel. Courts 12 have discretion, pursuant to 28 U.S.C. § 1915(e)(l) (1996), to appoint counsel for 13 indigent civil litigants upon a showing of exceptional circumstances. "A finding of 14 exceptional circumstances requires an evaluation of both the likelihood of success on the 15 merits and the ability of the petitioner to articulate his claims prose in light of the 16 complexity of the legal issues involved." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 17 Cir. 1991) (internal citations omitted). "Neither of these factors is dispositive and both 18 must be viewed together before reaching a decision." Id. (internal citations omitted). 19 At this time, the Court cannot say there is any likelihood of success on the merits. 20 Moreover, Plaintiff fails to demonstrate an inability to represent herself beyond the 21 ordinary burdens encountered by plaintiffs representing themselves pro se. Therefore, 22 the Court finds that the exceptional circumstances required for the appointment of 23 counsel are not present. Plaintiffs request is DENIED. 24 III. Sua Sponte Screening 25 Any complaint filed pursuant to the IFP provisions of28 U.S.C. § 1915(a) is 26 subject to a mandatory and sua sponte review by the Court. The Court must dismiss the 27 complaint, or any portion thereof, that is frivolous, malicious, fails to state a claim upon 28 which relief may be granted, or seeks monetary relief from a defendant immune from 2 3: 17-cv-2089-BEN-JMA 1 suit. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 2013 F.3d 1122, 1126-27 (9th Cir. 2000) 2 (en bane). 3 Plaintiff sues under 42 U.S.C. § 1983 for violation of her constitutional rights 4 related to "familial association; due process; liberty interest; cruel and unusual 5 punishment; privacy; religion; illegal search & seizure; false arrest (false imprisonment); 6 malicious prosecution; [and] unreasonable/excessive force." (Compl. at 3). Her 7 complaint is based on events that occurred in 2011, 2012, and 2013 concerning 8 allegations of child sexual abuse. Plaintiff's children have been removed from her 9 custody and placed with their father, Defendant Robert L. Arnold. Plaintiff alleges that 10 the "current custody agreement is based entirely on fraud," that the "children should 11 never have been removed," and that Robert Arnold has sexually abused her children. She 12 seeks "immediate removal of the children from the sex offender R. Arnold," a "trial by 13 jury on child sexual abuse charges against Robert L. Arnold and child abuse charges 14 against the other Defendants," and $1 million in damages for each victim for each year of 15 separation. 16 42 U.S.C. § 1983 authorizes claims but does not provide a limitations period. In 17 the absence of a federal limitations period, federal district courts apply the forum state's 18 statute of limitations for analogous claims. Butler v. Nat'! Cmty. Renaissance of Cal., 19 766 F.3d 1191, 1198 (9th Cir. 2014). Claims arising under§ 1983 are considered 20 personal injury actions for statute of limitations purposes. Wilson v. Garcia, 471 U.S. 21 261, 275 (1985). Thus, Plaintiff's§ 1983 claims are governed by California's two-year 22 limitations period for personal injury actions. Cal. Civ. P. Code§ 335.1; Butler, 766 F.3d 23 at 1198. 24 In this case, Plaintiff alleges that the last event that gave rise to her claims occurred 25 in September 2013. The two-year limitations period expired in September 2015. In other 26 words, her current claims are untimely and Plaintiff has failed to state a claim upon which 27 relief can be granted. Accordingly, Plaintiff's complaint is subject to sua sponte 28 dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). 3 3:17-cv-2089-BEN-JMA . ' ' 1 2 IV. Conclusion For the above reasons, Plaintiffs motion to proceed IFP is GRANTED, her 3 request for appointment of counsel is DENIED, and her complaint is DISMISSED for 4 failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 5 IT IS SO ORDERED. 6 7 Dated: Octob#2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3: l 7-cv-2089-BEN-JMA

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