Stroud v. Gore et al

Filing 4

ORDER (1) Granting 2 Motion to Proceed In Forma Pauperis. (2) Directing U.S. Marshal to Effect Service; and (3) Denying Motion for Appointment of Counsel Without Prejudice. Signed by Judge Janis L. Sammartino on 3/26/2018. (All non-registered users served via U.S. Mail Service)(IFP PACKET MAILED/COPY TO USMO)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM RICHARD STROUD, JR.,

Case No.: 18-CV-515-JLS (MDD)

Plaintiff,

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ORDER (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; 2) DIRECTING U.S.
MARSHAL TO EFFECT SERVICE;
AND (3) DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
SHERIFF WILLIAM D. GORE, et al.,

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Defendants.

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(ECF Nos. 2, 3)

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Presently before the Court are Plaintiff William Richard Stroud, Jr.’s Motion to

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

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Appointment of 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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18-CV-515-JLS (MDD)

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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 $820 (received through disability payments), he is currently unemployed and

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unable to work, and he has few assets. (IFP Mot. 2–5.)1 Plaintiff’s monthly expenses are

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$750. (Id. at 5.) The Court concludes that Plaintiff’s application demonstrates he is unable

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to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiff’s Motion to

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Proceed IFP.

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

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The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)

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and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief

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may be granted,” or “seeks monetary relief against a defendant who is immune from relief.”

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28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoner.”); Lopez v.

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Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e)

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“not only permits but requires a district court to dismiss an in forma pauperis complaint

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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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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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For ease of reference, page numbers to docketed materials refer to the CM/ECF page number.
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18-CV-515-JLS (MDD)

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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 his contentions with facts. Id. (citing Iqbal,

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556 U.S. at 679).

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In the present case, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 against

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Sheriff William Gore, Detective Lizarraga, Sergeant Michalke, and Detective Oshea.

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Plaintiff states while in the parking lot at George Bailey Detention Facility, he was stopped

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by the defendants and they asked him to submit to a personal and vehicle search.

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(“Compl.,” ECF No. 1, ¶ 5.) Plaintiff did not agree to the search and was then “slammed”

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against a vehicle, his face was “smash[ed]” against the vehicle, “slammed to the ground

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and [the officers] jumped on his back with their knees.” (Id. at 2–3.) Plaintiff then asserts

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he was placed in too-tight handcuffs that injured him and then was placed in a patrol car.

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(Id. at 3.) Plaintiff asserts his Fourth Amendment rights were violated when they searched

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his vehicle without his consent. Plaintiff also asserts he was falsely arrested. (Id. at 4–5.)
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Plaintiff asserts he went on trial for driving under the influence and resisting arrest and was

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found not guilty. (Id. at 7.)

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Accepting Plaintiff’s factual allegations as true, the Court finds Plaintiff’s pleading

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sufficient to survive the “low threshold” for proceeding past the sua sponte screening

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required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). Plaintiff is cautioned, however, that

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“the sua sponte screening and dismissal procedure is cumulative of, and not a substitute

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for, any subsequent Rule 12(b)(6) motion that [defendant] may choose to bring.” Teahan

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v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007)

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Accordingly, Plaintiff is entitled to U.S. Marshal service on his behalf. 28 U.S.C. §

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1915(d) (“The officers of the court shall issue and serve all process, and perform all duties

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in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by

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a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in

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forma pauperis under 28 U.S.C. § 1915.”).

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MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff requests the Court appoint an attorney to represent him because he has no
financial ability to hire an attorney. (Mot. for Counsel 2.)

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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.

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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)).

This discretion,

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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). First, Plaintiff has only just survived the sua sponte
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screening of his Complaint, and the Complaint has not yet been served or answered. The

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likelihood of Plaintiff’s success on the merits in this case is therefore not yet clear at the

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early stage of the litigation. Second, Plaintiff seems to have the ability to articulate his

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claims pro se thus far. He has successfully navigated the court system, filing a detailed

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Complaint against Defendants, along with the present Motions. This indicates that Plaintiff

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at least has a basic understanding of and ability to litigate this action. Finally, although

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Plaintiff attests he made “diligent efforts to obtain counsel” (id. at 2), he also states he has

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not contacted any attorneys because he is unable to hire an attorney. (Id. at 1–2.)

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Therefore, it is not clear how Plaintiff can confirm that attorneys will not handle his claim.

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(See id.)

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circumstances warrant appointment of counsel at this time and DENIES Plaintiff’s Motion.

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This denial is WITHOUT PREJUDICE should Plaintiff later be able to make the requisite

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showing of exceptional circumstances.

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The Court finds that neither the interests of justice nor any exceptional

ORDERS AND CONCLUSION
Good cause appearing, the Court:

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1. GRANTS Plaintiff Motion to Proceed IFP, (ECF No. 2);

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2. DIRECTS the Clerk of Court to issue a summons as to Plaintiff’s Complaint, (ECF

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No. 1), upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal

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Form 285 for Defendants. In addition, the Court DIRECTS the Clerk to provide

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Plaintiff with a certified copy of this Order, a certified copy of his Complaint, (ECF

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No. 1), and a summons so that he may serve the Defendants. Once he receives this

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“IFP Package,” Plaintiff is ORDERED to complete the Form 285 as completely and

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accurately as possible, include an address where Defendants may be found and/or

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subject to service pursuant to Civil Local Rule 4.1(c), and return it to the United

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States Marshal according to the instructions the Clerk provides in the letter

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accompanying his IFP package.

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3. ORDERS the U.S. Marshal, upon receipt of Plaintiff’s completed USM Form 285,

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to timely serve a copy of Plaintiff’s Complaint and summons upon Defendants as
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directed by Plaintiff. All costs of that service will be advanced by the United States.

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See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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4. ORDERS Defendants, once they have been served, to reply to Plaintiff’s Complaint

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within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g) (while a defendant may occasionally be

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permitted to “waive the right to reply to any action brought by a prisoner confined

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in any jail, prison, or other correctional facility under section 1983[,]” once the Court

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has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and

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§ 1915A(b), and thus, has made a preliminary determination based on the face on

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the pleading alone that the plaintiff has a “reasonable opportunity to prevail on the

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merits[,]” the defendant is required to respond).

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5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve

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upon Defendants or, if appearance has been entered by counsel, upon Defendants’

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counsel, a copy of every further pleading, motion, or other document submitted for

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the Court’s consideration. Plaintiff must include with every original document he

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seeks to file with the Clerk of the Court, a certificate stating the manner in which a

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true and correct copy of that document has been was served on Defendant, or counsel

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for Defendant, and the date of that service. Any document received by the Court

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which has not been properly filed with the Clerk or which fails to include a

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Certificate of Service upon the Defendant may be disregarded.

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6. DENIES WITHOUT PREJUDICE Plaintiff’s Motion for Appointment of

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Counsel (ECF No. 3). Should circumstances change, Plaintiff may be permitted to

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file another Motion for Appointment of Counsel.

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IT IS SO ORDERED.

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Dated: March 26, 2018

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