Howard v. San Diego County Counsel et al

Filing 4

ORDER Granting 2 Motion to Proceed in Forma Pauperis; Dismissing 1 Complaint Pursuant to 28 U.S.C. § 1915(e)(2)(B); and Denying 3 Motion to Appoint Counsel. The Court grants Plaintiff's motion to proceed IFP, denies Plaintiff's m otion to appoint counsel without prejudice, and dismisses Plaintiff's Complaint without prejudice. Plaintiff must file an amended complaint, if any, on or before 7/13/2018. Failure to file an amended complaint on or before the deadline may result in the case being dismissed with prejudice. Signed by Judge Michael M. Anello on 6/21/2018. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 18cv1183-MMA (JMA)

VIRGINIA HOWARD,

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;

Plaintiff,

v.

[Doc. No. 2]

SAN DIEGO COUNTY COUNSEL, et
al.,

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DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §
1915(e)(2)(B);

Defendants.

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[Doc. No. 1]

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AND DENYING MOTION TO
APPOINT COUNSEL

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[Doc. No. 3]

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Plaintiff Virginia Howard (“Plaintiff”), proceeding pro se, has filed the instant

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action against Defendants San Diego County Counsel and San Diego County

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Recorder/Assessor’s Office.1 See Complaint. Plaintiff simultaneously filed motions to

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proceed in forma pauperis (“IFP”) and for appointment of counsel. See Doc. Nos. 2, 3.

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The Court notes that the sole proper defendant in this action is the County of San Diego
(“County”).
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18cv1183-MMA (JMA)

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BACKGROUND

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Plaintiff “was a previous owner of the Real Property 6210 Amesbury Street San

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Diego California 92114[.]” Complaint at 2.2 Plaintiff was involved in a “civil suit”

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relating to this property with her three siblings (Case Number 37-2008-00066253-CU-

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OR-EC). Id. Plaintiff indicates she has a claim against the County because the San

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Diego County Assessor/Recorder’s Office failed to record Plaintiff’s “Notice of Pending

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Action (Lis Pendens)[.]” Id. The County “fail[ed] to record or omitted the Plaintiffs [sic]

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Lis Pendens (Notice of pending action), both Liens, and Homestead) in [its] Index.” Id.

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at 3. The County’s alleged failure to record “vital information” caused the real property

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located at 6210 Amesbury Street “to be sold before Plaintiff could be compensated for

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the Lien.” Id. Plaintiff contends that both “Lis Penden and both Lien issues were raised

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in the Plaintiff [sic] Claim to the San Diego County Claims Division.” Id.

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Plaintiff contends that “[t]his action is brought to secure relief as a real property

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owner, pro per, pro se, self represented LITIGATES [sic] under 42 USC 1983 from the

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longstanding discrimination in provision of municipal services and local government

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entities.” Id. at 4. Plaintiff further contends that her Fifth Amendment rights have been

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violated under 42 U.S.C. § 1983, asserting “[p]rivate property cannot be taken for public

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use Inverse condemnation” and “[r]eal property cannot be sold without just

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Compensation[.]” Id. at 5. Due to the County’s failure to record information in its index,

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Plaintiff has “been deprived interest due, compensation because the real property was

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taken for public use, rights to hold real property, loss of use of real property” and “loss of

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monies for repairs of real property while owner under 42 USC 1983.” Id. at 7. Plaintiff

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seeks money damages in the amount of approximately $1,190,331.00 (Id.) and “other

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reliefs suitable by this Court and to Compromise without long court hearing” (Id. at 4).

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Citations to the Complaint refer to the pagination assigned by the CM/ECF system.
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18cv1183-MMA (JMA)

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MOTION FOR LEAVE TO PROCEED IFP
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 she is granted leave to proceed IFP pursuant to 28 U.S.C. §

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1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

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forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

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1965).

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A party need not be completely destitute to proceed in forma pauperis. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). But “the same even-

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handed care must be employed to assure that federal funds are not squandered to

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underwrite, at public expense, either frivolous claims or the remonstrances of a suitor

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who is financially able, in whole or in material part, to pull his own oar.” Temple v.

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Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

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Here, Plaintiff submits an affidavit which indicates that her average monthly

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income from employment during the last twelve months is $144.00. See Doc. No. 2 at 1.

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Plaintiff reports that she receives approximately $972.00 per month in retirement funds.

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See id. at 2. Plaintiff indicates that she currently owns no real property, but owns a 2015

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Kia Soul. See id. at 3. Plaintiff reports, however, that her monthly expenses total

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$1,828.00. See id. at 5. The Court finds that the IFP application sufficiently indicates

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that Plaintiff’s montly expenses exceed her income, and that she cannot afford to pay the

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filing fee. Accordingly, the Court GRANTS Plaintiff’s motion for leave to proceed IFP.

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MOTION TO APPOINT COUNSEL

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Plaintiff also requests that the Court appoint her counsel due to her indigence, lack

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of legal training, and her inability to obtain counsel on her own (which she refers to as

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“[d]iscrimination against a self-represented citizen of this state”). See Doc. No. 3 at 3.

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All documents filed pro se are liberally construed, and “a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
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18cv1183-MMA (JMA)

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drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.

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Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no

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constitutional right to counsel in a civil case, and Plaintiff’s Complaint does not demand

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that the Court exercise its limited discretion to request that an attorney represent her pro

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bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. Dept. of

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Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 F.3d

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1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a

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discretionary appointment. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); see

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also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances

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exist where there is a showing of both a likelihood of success on the merits and a

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demonstrated inability of the pro se litigant to articulate her claims in light of their legal

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complexity. See Terrell, 935 F.2d at 1017.

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As currently pleaded, Plaintiff’s Complaint demonstrates that while she may not be

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formally trained in the law, she nevertheless is fully capable of legibly articulating the

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facts and circumstances relevant to her claims, which are typical and not legally

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“complex.” Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below,

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Plaintiff has yet to show she is likely to succeed on the merits of the claim she alleges.

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Id.; see also Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming district

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court’s denial of a motion to appoint counsel in a civil case). Therefore, the Court

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DENIES Plaintiff’s motion for appointment of counsel without prejudice.

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SCREENING PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)
When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and

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the Court must order the sua sponte dismissal of any case it finds “frivolous, malicious,

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failing to state a claim upon which relief may be granted, or seeking monetary relief from

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a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254

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F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not

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limited to prisoners.”).

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“[W]hen determining whether a complaint states a claim, a court must accept as
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18cv1183-MMA (JMA)

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true all allegations of material fact and must construe those facts in the light most

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

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addition, the Court has a duty to liberally construe a pro se plaintiff’s pleadings. See id.

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In giving liberal interpretation to a pro se complaint, however, the court may not “supply

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essential elements of claims that were not initially pled.” See Ivey v. Board of Regents of

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the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Under the “notice pleading” standard of the Federal Rules of Civil Procedure, a

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plaintiff’s complaint must provide, in part, a “short and plain statement” of the plaintiff’s

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claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF,

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Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A complaint should be dismissed for failure to

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state a claim if, taking all well-pleaded factual allegations as true, it does not contain

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“enough facts to state a claim to relief that is plausible on its face.” See Coto Settlement

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v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct.

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1937, 1949 (2009)). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d

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806, 812 (9th Cir. 2010) (citation omitted).

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The Court is not only allowed to, but is required to screen IFP complaints. See

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Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000); Ogunniyi v. Sw. Reg’l Maint.

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Ctr., No. 14CV2904 BEN (NLS), 2015 WL 10857499, at *1 (S.D. Cal. Apr. 30, 2015)

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(“The sua sponte screening is mandatory.”). “A trial court may dismiss a claim sua

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sponte under Fed. R. Civ. P. 12(b)(6). . . . Such dismissal may be made without notice

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where the claimant cannot possibly win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d

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986, 991 (9th Cir. 1987); see aslo Wong v. Bell, 642 F.2d 359, 36162 (9th Cir. 1981).

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Here, because Plaintiff has named the County as the sole defendant in this action,

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the Court construes Plaintiff’s Complaint as asserting a Monell claim based on purported

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violations of rights guaranteed by the Fourteenth and Fifth Amendments. See Complaint

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at 5-6.
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18cv1183-MMA (JMA)

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Section 1983 provides that “[e]very person who, under color of any statute,

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ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be

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subjected, any citizen of the United States . . . to the deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws, shall be liable to the party injured.”

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42 U.S.C. § 1983.

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A local governmental entity “may not be sued under § 1983 for an injury inflicted

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solely by its employees or agents. Instead, it is when execution of a government’s policy

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or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

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said to represent official policy, inflicts the injury that the government as an entity is

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responsible under § 1983.” Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658, 694

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(1978). In order to establish liability for governmental entities under Monell, a plaintiff

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must prove: (1) that the plaintiff possessed a constitutional right of which she was

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deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate

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indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving

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force behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900

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(9th Cir. 2011) (citing Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438

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(9th Cir. 1997)). A single occurrence of unconstitutional action by a non-policymaking

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employee is insufficient to establish the existence of an actionable municipal policy or

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custom. See Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989). “Only

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if a plaintiff shows that his injury resulted from a permanent and well settled practice

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may liability attach for injury resulting from a local government custom.” Thompson v.

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City of L.A., 885 F.2d 1439, 1444 (9th Cir. 1989) (quotations omitted). “Where a

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plaintiff claims that the municipality has not directly inflicted injury, but nonetheless has

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caused an employee to do so, rigorous standards of culpability and causation must be

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applied to ensure that the municipality is not held liable for the actions of its employee.”

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Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 405 (1997).

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As currently pleaded, however, Plaintiff’s Complaint is deficient because she fails
to allege that she suffered a constitutional injury. See City of L.A. v. Heller, 475 U.S.
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796, 799 (1986) (indicating that “[i]f a person has suffered no constitutional injury” at the

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hands of a municipal employee, there can be no liability). For example, Plaintiff appears

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to allege that the County’s failure to record various documents violates the Equal

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Protection Clause of the Fourteenth Amendment. See Complaint at 5. “To state a claim

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under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth

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Amendment a plaintiff must show that the defendants acted with an intent or purpose to

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discriminate against the plaintiff based upon membership in a protected class.” Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing Washington v. Davis, 426 U.S.

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229, 239-40 (1976)). Plaintiff fails to demonstrate that she is a member of a protected

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class, and fails to allege that County employees acted with “an intent or purpose to

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discriminate.” Id.

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Additionally, Plaintiff asserts that the real property located at 6210 Amesbury

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Street “was taken” and sold “without just Compensation” in violation of the Fifth

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Amendment.3 Complaint at 6. The Supreme Court has outlined two requirements a

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plaintiff must meet before bringing a taking claim in federal court. See Williamson Cnty.

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Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). First, “a taking of a

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property interest is not ripe until the government entity charged with implementing the

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regulations has reached a final decision regarding the application of the regulations to the

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property at issue.” Id. at 186. Second, a taking claim is premature if the plaintiff has not

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sought “compensation through the procedures the State has provided for doing so.” Id. at

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194. Plaintiff does not allege any information regarding the first requirement, nor does

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Plaintiff allege that she sought compensation through California procedures pursuant to

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the second requirement. As such, Plaintiff fails to allege a constitutional injury.

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Further, Plaintiff does not allege any facts which “might plausibly suggest” that
she was subject to unconstitutional conduct pursuant to any municipal custom, policy, or

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The Fifth Amendment is made applicable to the states through the Fourteenth Amendment.
See Carson Harbor Village, Ltd. v. City of Carson, 353 F.3d 824, 826 (9th Cir. 2004).
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practice implemented or promulgated with deliberate indifference to her constitutional

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rights, or that such a policy was the “moving force” or cause of her injury—a fatal defect

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of her Monell claim. See Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

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(applying Iqbal’s pleading standards to Monell claims); see also Brown, 520 U.S. at 404

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(“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable

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to the municipality . . . [t]he plaintiff must also demonstrate that, through its deliberate

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conduct, the municipality was the ‘moving force’ behind the injury alleged.”).

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Accordingly, the Court finds Plaintiff fails to state a claim upon which relief may
be granted pursuant to 28 U.S.C 1915(e)(2)(B).

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CONCLUSION
In light of the foregoing, the Court GRANTS Plaintiff’s motion to proceed IFP,

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DENIES Plaintiff’s motion to appoint counsel without prejudice, and DISMISSES

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Plaintiff’s Complaint without prejudice. Plaintiff must file an amended complaint, if any,

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on or before July 13, 2018. Failure to file an amended complaint on or before the

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deadline may result in the case being dismissed with prejudice.

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IT IS SO ORDERED.

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Dated: June 21, 2018
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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