Sandoval v. Shift Transmissions

Filing 4

ORDER (1) Granting 2 Motion to Proceed In Forma Pauperis; (2) Dismissing Complaint; (3) Denying 3 Motion for Appointment of Counsel. Pursuant to the screening requirements of 28 U.S.C. §§ 1915(e)(2) & 1915A(b), the Court dismisses without prejudice Plaintiff's Complaint. Signed by Judge Janis L. Sammartino on 2/12/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 GRACE SANDOVAL, Case No.: 18-CV-305 JLS (JLB) Plaintiff, 11 12 13 ORDER (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING COMPLAINT; (3) DENYING MOTION FOR APPOINTMENT OF COUNSEL v. SHIFT TRANSMISSIONS, 14 Defendant. 15 16 (ECF Nos. 2, 3) 17 18 Presently before the Court are Plaintiff Grace Sandoval’s Motion to Proceed In 19 Forma Pauperis (“IFP”), (“IFP Mot.,” ECF No. 2), and Motion for Appointment of 20 Counsel, (“Counsel Mot.,” 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 18-CV-305 JLS (JLB) 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 her average 4 monthly income was $2,000 for the past year, but that she is currently unemployed and 5 does not expect income next month. (IFP Mot. 2–4, 6.)1 Plaintiff indicates her total 6 monthly expenses are $846.00. (Id. at 6.) Although it appears Plaintiff could presently 7 pay the fees and costs, the fact that she is currently unemployed indicates paying the filing 8 fees would pose an undue financial burden on her. Thus, the Court GRANTS Plaintiff’s 9 Motion to Proceed IFP. 10 Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 11 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 12 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 13 may be granted,” or “seeks monetary relief against a defendant who is immune from relief.” 14 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 15 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 16 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) 17 “not only permits but requires a district court to dismiss an in forma pauperis complaint 18 that fails to state a claim”). 19 As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2) 20 mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915 21 make and rule on its own motion to dismiss before directing the Marshal to effect service 22 pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette 23 v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal. 24 Jan. 9, 2013). 25 All complaints must contain a “short and plain statement of the claim showing that 26 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 27 28 1 For ease of reference, page numbers to docketed materials refer to the CM/ECF page number. 2 18-CV-305 JLS (JLB) 1 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 2 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 3 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 4 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 5 on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 6 U.S. at 556). 7 “When there are well-pleaded factual allegations, a court should assume their 8 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 9 Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court 10 must accept as true all allegations of material fact and must construe those facts in the light 11 most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see 12 also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152 13 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the 14 language of Federal Rule of Civil Procedure 12(b)(6).”). 15 “While factual allegations are accepted as true, legal conclusions are not.” Hoagland 16 v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) 17 (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a 18 complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal, 19 556 U.S. at 679). 20 In the present case, Plaintiff filed a Complaint against Shift Transmissions for 21 causing damage to her car. (“Compl.,” ECF No. 1.) Plaintiff alleges the owners of Shift 22 Transmissions are involved in “grand theft auto.” (Id. at 3.) Plaintiff then goes on for 23 seven pages listing names of a multitude of people. Plaintiff alleges these people are 24 involved in fraud, grand theft auto, vandalizing vehicles, false identification, stealing, rape, 25 and more. Plaintiff does not indicate the relevance of these allegations, nor how they relate 26 to the initial allegation of damage to her car. Plaintiff also does not indicate why this case 27 is properly in federal court, and the Court is unable to ascertain from Plaintiff’s lengthy 28 Complaint any basis for jurisdiction. It is also unclear if Plaintiff intends to include as 3 18-CV-305 JLS (JLB) 1 Defendants the multitude of people listed in the Complaint. In sum, Plaintiff’s Complaint 2 in no way contains a “short and plain statement of the grounds for the court’s jurisdiction” 3 nor a “short and plain statement of the claim showing that [Plaintiff] is entitled to relief.” 4 Fed. R. Civ. P. 8. Plaintiff also does not indicate what relief she is seeking, and against 5 who. Therefore, Plaintiff has not met the screening standards of 28 U.S.C. §§ 1915(e)(2) 6 & 1915A(b). The Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint, 7 (ECF No. 1). 8 MOTION FOR APPOINTMENT OF COUNSEL 9 Plaintiff filed a Motion for Appointment of Counsel. (Counsel Mot.) However, it 10 is unclear what Plaintiff is requesting because she indicates, “I agree to pay attorney [sic] 11 to represent me in court.” (Id. at 4.) The Court analyzes the Motion assuming Plaintiff is 12 requesting the Court appoint counsel. 13 The Constitution provides no right to appointment of counsel in a civil case unless 14 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. 15 of Soc. Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district 16 courts have the discretion to appoint counsel for indigent persons. This discretion, however, 17 may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 18 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation 19 of both the ‘likelihood of success on the merits and the ability of the plaintiff to articulate 20 his claims pro se in light of the complexity of the legal issues involved.’ Neither of these 21 issues is dispositive and both must be viewed together before reaching a decision.” Id. 22 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 23 The Court finds Plaintiff has not satisfied the standards for appointment of counsel 24 under 28 U.S.C. § 1915(e)(1). As described above, Plaintiff has failed to file a complaint 25 that explains, through factual allegations, exactly what happened in the case. The Court 26 cannot evaluate Plaintiff’s Motion for Counsel without an operative complaint. 27 Furthermore, Plaintiff's Motion has no reason whatsoever why her situation merits 28 appointment of counsel. Therefore, the Court finds that neither the interests of justice nor 4 18-CV-305 JLS (JLB) 1 any exceptional circumstances warrant appointment of counsel at this time and DENIES 2 Plaintiff's motion, (ECF No. 3). 3 CONCLUSION 4 In sum, the Court GRANTS Plaintiff’s Motion to Proceed IFP, (ECF No. 2), and 5 DENIES Plaintiff’s Motion for Counsel, (ECF No. 3). 6 requirements of 28 U.S.C. §§ 1915(e)(2) & 1915A(b), the Court DISMISSES WITHOUT 7 PREJUDICE Plaintiff’s Complaint, (ECF No. 1). 8 complaint to cure the deficiencies in her Complaint. 9 10 Pursuant to the screening Plaintiff may file an amended IT IS SO ORDERED. Dated: February 12, 2018 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 18-CV-305 JLS (JLB)

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