Shteynberg v. Sheriffs Department

Filing 6

ORDER (1) Denying 2 Motion to for Leave to Proceed in Forma Pauperis; (2) Dismissing Civil Action for Failing to State a Claim; (3) Denying 3 Motion to Appoint Counsel. Pursuant to the screening requirements of 28 U.S.C. §§ 1915(e)(2 ) & 1915A(b), the Court dismisses without prejudice Plaintiff's Complaint, (ECF No. 1 ). The Court grants Plaintiff an additional thirty (30) days from the date on which this Order is electronically filed to file an amended complaint in Case Number 17-CV-1098. Signed by Judge Janis L. Sammartino on 11/16/2017. (All non-registered users served via U.S. Mail Service)(Copy of Order in Related case mailed)(mpl).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUDOLF SHTEYNBERG,

Case No.: 17-CV-2149 JLS (KSC)
Plaintiff,

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ORDER (1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS; 2)
DISMISSING CIVIL ACTION FOR
FAILING TO STATE A CLAIM; (3)
DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
SHERIFFS DEPARTMENT,

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Defendant.

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(ECF Nos. 2, 3)

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Presently before the Court are Plaintiff Rudolf Shteynberg’s Motion to Proceed In

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Forma Pauperis (“IFP”), (“IFP Mot.,” ECF No. 2), and Motion for Appointment of

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Counsel, (“Mot. for Counsel,” ECF No. 3).

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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, Plaintiff has submitted an affidavit indicating his total monthly

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income is $937.36 (received through disability payments and “annuity payments”), he is

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currently unemployed, and has no assets. (IFP Mot. 2–4.)1 Plaintiff states his monthly

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expenses are approximately $470. These expenses comprise of $70 for a 2-day “hotel

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stay,” approximately $200 for “small business development” and approximately $200 for

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“taxi, rental hotel stay and others.” (Id. at 5–6.) It appears the “hotel stay” is double

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counted, and Plaintiff lists no other expenses. Plaintiff also states he is going through a

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divorce, but lists nothing regarding his spouse’s employment history or income. (Id. at 3–

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6.) At this time, it is unclear if Plaintiff is able to pay the requisite fees and costs.

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Accordingly, the Court DENIES Plaintiff’s Motion to Proceed IFP. As will be discussed

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below, the Court has previously granted Plaintiff’s Motion to Proceed IFP in his related

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case, No. 17-CV-1098-JLS-KSC.

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

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Even though it denies Plaintiff’s Motion, the Court finds it necessary to screen

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Plaintiff’s Complaint. The Court must screen every civil action brought pursuant to 28

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U.S.C. § 1915(a) and dismiss any case it finds “frivolous or malicious,” “fails to state a

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claim on which relief may be granted,” or “seeks monetary relief against a defendant who

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

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

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to prisoner.”); 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. § 1915(e)(2)

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mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915

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For ease of reference, page numbers to docketed materials refer to the CM/ECF page number.
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make and rule on its own motion to dismiss before directing the Marshal to effect service

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pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette

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v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal.

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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 draw

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on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550

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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 light

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most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see

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also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152

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

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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.” Hoagland

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v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012)

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

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complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal,

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556 U.S. at 679).

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In the present case, Plaintiff’s Complaint appears to be a reiteration of his request

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for counsel. The entire Complaint states: “This is to notify Judge appointed and judicial

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authority that Plaintiff is in position to continue [illegible] volunteers Program and Counsel
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to be appointed as the Plaintiff who is acting on his own and have no [knowledge] and legal

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capacity to pro[c]eed on his own. Limited [knowledge] of legal terms would not [illegible]

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him to communicate in legal manners or proceed on his own. Previous request from Judge

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Sammartino to obtain names of the Defendants Parties was not released in full by San

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Diego County Sheriffs Department and it was discussion in the correctional facility on

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release of such information.” (ECF No. 1, at 3.)

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Attached to Plaintiff’s Complaint is a Complaint Form for the San Diego County

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Sheriff’s Department, (ECF No. 1-20). In this Complaint Form, Plaintiff requests the

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“release of all sheriffs officers and names of Judges (including medical team / doctors,

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nurses, and employees) working at the date/ time of [illegible] in custody. Date and time

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of my incarceration.” (Id.) No other information is provided.

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Plaintiff has filed a complaint in a related case before the Court, (see Case No. 17-

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CV-1098-JLS-KSC). The issue in that case arises from alleged personal injury against

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Plaintiff by the San Diego County Sheriff’s Office. (See ECF No. 1.)2 In that case, the

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Court granted Plaintiff’s motion to proceed IFP on June 30, 2017, but dismissed the

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Complaint pursuant to mandatory screening under 28 U.S.C. §§ 1915(e)(2) & 1915A(b),

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(see ECF No. 6.) The Court granted Plaintiff thirty days to refile his complaint. Instead

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of filing an amended complaint, Plaintiff filed various motions (motion to expedite, motion

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to appoint counsel, and motion for recusal), which the Court generally denied in an

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omnibus order, (see ECF No. 19).3 The Court gave Plaintiff an additional thirty days from

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the date of the omnibus order to file his Amended Complaint.

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The citations to the ECF docket in this section relate to the docket in 17-CV-1098.
The Court did grant Plaintiff’s Motion to Stop Correspondence to Mailing Address, (ECF No. 10).
However, the Clerk’s Office has attempted to mail Plaintiff various Orders in case number 17-CV-1098
and these have been returned as undeliverable. Plaintiff’s listed mailing address in the present case,
number 17-CV-2149, is the same address Plaintiff requested the Court stop mailing correspondence to;
however, his filings in the present case are also his most recent use of a mailing address. Therefore, in an
effort to reach Plaintiff, the Court will direct the Clerk’s Office to send correspondence to the address
listed in case 17-CV-2149.
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Instead, Plaintiff filed a renewed motion to appoint counsel, which the Court denied

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on October 18, 2017, (see ECF No. 35). The Court gave Plaintiff an additional thirty days

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to file an Amended Complaint. Subsequent to that order, all correspondence in Case

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Number 17-CV-1098 has been returned to the Clerk’s Office as undeliverable, (see ECF

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Nos. 38, 39). On October 19, 2017, Plaintiff filed the present Complaint as a new case

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instead of filing an Amended Complaint in his original case.

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Throughout all the filings in both cases, Plaintiff continues to disregard the Court’s

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most basic order: Plaintiff must file an amended complaint in his original case that explains,

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through factual allegations, exactly what happened in his case, that is, who did what to

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Plaintiff, what were the circumstances, how was he wronged. As discussed previously,

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Plaintiff’s Complaint in this case provides no factual allegations as to what happened or

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how he was wronged. Plaintiff’s Complaint appears to be a renewed request for counsel.

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Therefore, the Court finds that Plaintiff has not met the screening standards of 28 U.S.C.

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§§ 1915(e)(2) & 1915A(b). The Court DISMISSES WITHOUT PREJUDICE Plaintiff’s

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Complaint, (ECF No. 1).

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MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff’s Motion for Appointment of Counsel consists of a standardized form

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listing his contact information and stating that he has no money in a checking or savings

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account. (ECF No. 3, at 2, 6.) Plaintiff does not list any reason why he needs counsel

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appointed, but rather underlines the prompt on the standard form. (Id. at 4.) The only other

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information provided is his statement that “I’ve made previous attempts to contact

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Attorney’s [sic] (Law Offices).” (Id. at 3.)

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The Constitution provides no right to appointment of counsel in a civil case unless

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an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept.

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

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courts have the discretion to appoint counsel for indigent persons. This discretion,

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however, may be exercised only under “exceptional circumstances.” Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an
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evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved.’ Neither

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of these issues is dispositive and both must be viewed together before reaching a decision.”

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

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The Court finds Plaintiff has not satisfied the standards for appointment of counsel

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under 28 U.S.C. § 1915(e)(1). In both this case and the related case, Plaintiff has failed to

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file a complaint that explains, through factual allegations, exactly what happened in the

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case. The Court cannot evaluate Plaintiff’s Motion for Counsel without an operative

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complaint. Furthermore, Plaintiff’s Motion has no reason whatsoever why his situation

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merits appointment of counsel. Therefore, the Court finds that neither the interests of

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justice nor any exceptional circumstances warrant appointment of counsel at this time and

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DENIES Plaintiff’s motion, (ECF No. 3).

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CONCLUSION

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The Court has repeatedly extended Plaintiff’s deadline for filing an amended

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complaint. Plaintiff has repeatedly failed to do so. Instead, he has filed a variety of motions

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in case number 17-CV-1098 and has filed an entirely new case, presently before the Court,

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which appears to arise from the same common nucleus of operative facts. The Court cannot

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evaluate Plaintiff’s claim without a short and plain statement showing why Plaintiff is

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entitled to relief.
In sum, the Court DENIES Plaintiff’s Motion to Proceed IFP, (ECF No. 2), and

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DENIES Plaintiff’s Motion for Counsel, (ECF No. 3).

Pursuant to the screening

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requirements of 28 U.S.C. §§ 1915(e)(2) & 1915A(b), the Court DISMISSES WITHOUT

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PREJUDICE Plaintiff’s Complaint, (ECF No. 1). The Court ORDERS the Clerk of Court

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to mail a copy of this Order as well as the Court’s Order in case number 17-CV-1098, dated

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October 18, 2017, (ECF No. 35), to Plaintiff’s most recently filed mailing address (in case

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number 17-CV-2149).

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///

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Because Plaintiff has not received the Court’s Order in 17-CV-1098, the Court GRANTS

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Plaintiff an additional thirty (30) days from the date on which this Order is electronically

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filed to file an amended complaint in Case Number 17-CV-1098. Failure to file an

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amended complaint within thirty days may result in this case being dismissed for failure to

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prosecute.

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IT IS SO ORDERED.
Dated: November 16, 2017

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