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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 RUDOLF SHTEYNBERG, Case No.: 17-CV-2149 JLS (KSC) Plaintiff, 11 12 13 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, 14 Defendant. 15 16 (ECF Nos. 2, 3) 17 18 Presently before the Court are Plaintiff Rudolf Shteynberg’s Motion to Proceed In 19 Forma Pauperis (“IFP”), (“IFP Mot.,” ECF No. 2), and Motion for Appointment of 20 Counsel, (“Mot. for Counsel,” ECF No. 3). 21 IFP MOTION 22 All parties instituting any civil action, suit, or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 25 prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 26 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A 27 federal court may authorize the commencement of an action without the prepayment of 28 1 17-CV-2149 JLS (KSC) 1 fees if the party submits an affidavit, including a statement of assets, showing that he is 2 unable to pay the required filing fee. 28 U.S.C. § 1915(a). 3 In the present case, Plaintiff has submitted an affidavit indicating his total monthly 4 income is $937.36 (received through disability payments and “annuity payments”), he is 5 currently unemployed, and has no assets. (IFP Mot. 2–4.)1 Plaintiff states his monthly 6 expenses are approximately $470. These expenses comprise of $70 for a 2-day “hotel 7 stay,” approximately $200 for “small business development” and approximately $200 for 8 “taxi, rental hotel stay and others.” (Id. at 5–6.) It appears the “hotel stay” is double 9 counted, and Plaintiff lists no other expenses. Plaintiff also states he is going through a 10 divorce, but lists nothing regarding his spouse’s employment history or income. (Id. at 3– 11 6.) At this time, it is unclear if Plaintiff is able to pay the requisite fees and costs. 12 Accordingly, the Court DENIES Plaintiff’s Motion to Proceed IFP. As will be discussed 13 below, the Court has previously granted Plaintiff’s Motion to Proceed IFP in his related 14 case, No. 17-CV-1098-JLS-KSC. 15 Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 16 Even though it denies Plaintiff’s Motion, the Court finds it necessary to screen 17 Plaintiff’s Complaint. The Court must screen every civil action brought pursuant to 28 18 U.S.C. § 1915(a) and dismiss any case it finds “frivolous or malicious,” “fails to state a 19 claim on which relief may be granted,” or “seeks monetary relief against a defendant who 20 is immune from relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 21 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited 22 to prisoner.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting 23 that 28 U.S.C. § 1915(e) “not only permits but requires a district court to dismiss an in 24 forma pauperis complaint that fails to state a claim”). 25 As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2) 26 mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915 27 28 1 For ease of reference, page numbers to docketed materials refer to the CM/ECF page number. 2 17-CV-2149 JLS (KSC) 1 make and rule on its own motion to dismiss before directing the Marshal to effect service 2 pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette 3 v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal. 4 Jan. 9, 2013). 5 All complaints must contain a “short and plain statement of the claim showing that 6 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 10 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 11 on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 12 U.S. at 556). 13 “When there are well-pleaded factual allegations, a court should assume their 14 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 15 Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court 16 must accept as true all allegations of material fact and must construe those facts in the light 17 most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see 18 also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152 19 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the 20 language of Federal Rule of Civil Procedure 12(b)(6).”). 21 “While factual allegations are accepted as true, legal conclusions are not.” Hoagland 22 v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) 23 (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a 24 complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal, 25 556 U.S. at 679). 26 In the present case, Plaintiff’s Complaint appears to be a reiteration of his request 27 for counsel. The entire Complaint states: “This is to notify Judge appointed and judicial 28 authority that Plaintiff is in position to continue [illegible] volunteers Program and Counsel 3 17-CV-2149 JLS (KSC) 1 to be appointed as the Plaintiff who is acting on his own and have no [knowledge] and legal 2 capacity to pro[c]eed on his own. Limited [knowledge] of legal terms would not [illegible] 3 him to communicate in legal manners or proceed on his own. Previous request from Judge 4 Sammartino to obtain names of the Defendants Parties was not released in full by San 5 Diego County Sheriffs Department and it was discussion in the correctional facility on 6 release of such information.” (ECF No. 1, at 3.) 7 Attached to Plaintiff’s Complaint is a Complaint Form for the San Diego County 8 Sheriff’s Department, (ECF No. 1-20). In this Complaint Form, Plaintiff requests the 9 “release of all sheriffs officers and names of Judges (including medical team / doctors, 10 nurses, and employees) working at the date/ time of [illegible] in custody. Date and time 11 of my incarceration.” (Id.) No other information is provided. 12 Plaintiff has filed a complaint in a related case before the Court, (see Case No. 17- 13 CV-1098-JLS-KSC). The issue in that case arises from alleged personal injury against 14 Plaintiff by the San Diego County Sheriff’s Office. (See ECF No. 1.)2 In that case, the 15 Court granted Plaintiff’s motion to proceed IFP on June 30, 2017, but dismissed the 16 Complaint pursuant to mandatory screening under 28 U.S.C. §§ 1915(e)(2) & 1915A(b), 17 (see ECF No. 6.) The Court granted Plaintiff thirty days to refile his complaint. Instead 18 of filing an amended complaint, Plaintiff filed various motions (motion to expedite, motion 19 to appoint counsel, and motion for recusal), which the Court generally denied in an 20 omnibus order, (see ECF No. 19).3 The Court gave Plaintiff an additional thirty days from 21 the date of the omnibus order to file his Amended Complaint. 22 23 24 25 26 27 28 2 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. 3 4 17-CV-2149 JLS (KSC) 1 Instead, Plaintiff filed a renewed motion to appoint counsel, which the Court denied 2 on October 18, 2017, (see ECF No. 35). The Court gave Plaintiff an additional thirty days 3 to file an Amended Complaint. Subsequent to that order, all correspondence in Case 4 Number 17-CV-1098 has been returned to the Clerk’s Office as undeliverable, (see ECF 5 Nos. 38, 39). On October 19, 2017, Plaintiff filed the present Complaint as a new case 6 instead of filing an Amended Complaint in his original case. 7 Throughout all the filings in both cases, Plaintiff continues to disregard the Court’s 8 most basic order: Plaintiff must file an amended complaint in his original case that explains, 9 through factual allegations, exactly what happened in his case, that is, who did what to 10 Plaintiff, what were the circumstances, how was he wronged. As discussed previously, 11 Plaintiff’s Complaint in this case provides no factual allegations as to what happened or 12 how he was wronged. Plaintiff’s Complaint appears to be a renewed request for counsel. 13 Therefore, the Court finds that Plaintiff has not met the screening standards of 28 U.S.C. 14 §§ 1915(e)(2) & 1915A(b). The Court DISMISSES WITHOUT PREJUDICE Plaintiff’s 15 Complaint, (ECF No. 1). 16 MOTION FOR APPOINTMENT OF COUNSEL 17 Plaintiff’s Motion for Appointment of Counsel consists of a standardized form 18 listing his contact information and stating that he has no money in a checking or savings 19 account. (ECF No. 3, at 2, 6.) Plaintiff does not list any reason why he needs counsel 20 appointed, but rather underlines the prompt on the standard form. (Id. at 4.) The only other 21 information provided is his statement that “I’ve made previous attempts to contact 22 Attorney’s [sic] (Law Offices).” (Id. at 3.) 23 The Constitution provides no right to appointment of counsel in a civil case unless 24 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. 25 of Soc. Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district 26 courts have the discretion to appoint counsel for indigent persons. This discretion, 27 however, may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 28 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an 5 17-CV-2149 JLS (KSC) 1 evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff to 2 articulate his claims pro se in light of the complexity of the legal issues involved.’ Neither 3 of these issues is dispositive and both must be viewed together before reaching a decision.” 4 Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 5 The Court finds Plaintiff has not satisfied the standards for appointment of counsel 6 under 28 U.S.C. § 1915(e)(1). In both this case and the related case, Plaintiff has failed to 7 file a complaint that explains, through factual allegations, exactly what happened in the 8 case. The Court cannot evaluate Plaintiff’s Motion for Counsel without an operative 9 complaint. Furthermore, Plaintiff’s Motion has no reason whatsoever why his situation 10 merits appointment of counsel. Therefore, the Court finds that neither the interests of 11 justice nor any exceptional circumstances warrant appointment of counsel at this time and 12 DENIES Plaintiff’s motion, (ECF No. 3). 13 CONCLUSION 14 The Court has repeatedly extended Plaintiff’s deadline for filing an amended 15 complaint. Plaintiff has repeatedly failed to do so. Instead, he has filed a variety of motions 16 in case number 17-CV-1098 and has filed an entirely new case, presently before the Court, 17 which appears to arise from the same common nucleus of operative facts. The Court cannot 18 evaluate Plaintiff’s claim without a short and plain statement showing why Plaintiff is 19 entitled to relief. In sum, the Court DENIES Plaintiff’s Motion to Proceed IFP, (ECF No. 2), and 20 21 DENIES Plaintiff’s Motion for Counsel, (ECF No. 3). Pursuant to the screening 22 requirements of 28 U.S.C. §§ 1915(e)(2) & 1915A(b), the Court DISMISSES WITHOUT 23 PREJUDICE Plaintiff’s Complaint, (ECF No. 1). The Court ORDERS the Clerk of Court 24 to mail a copy of this Order as well as the Court’s Order in case number 17-CV-1098, dated 25 October 18, 2017, (ECF No. 35), to Plaintiff’s most recently filed mailing address (in case 26 number 17-CV-2149). 27 /// 28 6 17-CV-2149 JLS (KSC) 1 Because Plaintiff has not received the Court’s Order in 17-CV-1098, the Court GRANTS 2 Plaintiff an additional thirty (30) days from the date on which this Order is electronically 3 filed to file an amended complaint in Case Number 17-CV-1098. Failure to file an 4 amended complaint within thirty days may result in this case being dismissed for failure to 5 prosecute. 6 7 IT IS SO ORDERED. Dated: November 16, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 17-CV-2149 JLS (KSC)

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