George v. United States et al

Filing 9

Order: 1) Granting Motion to Proceed In Forma Pauperis (Doc. No. #2 ); 2) Denying Motion to Appoint Counsel and Motion for Joinder (Doc. Nos. #5 , #7 ); and 3) Dismissing Civil Action as Frivolous Pursuant to 28 U.S.C. 1915(E)(2)(B). Signed by Judge Anthony J. Battaglia on 10/07/2019.(All non-registered users served via U.S. Mail Service)(jrm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOSEPH GEORGE CDCR #BF-3836, Case No.: 3:19-cv-1544-AJB-BLM 13 14 15 16 17 18 19 ORDER: Plaintiff, 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2]; vs. UNITED STATES; WILLIAM BARR, Attorney General; ANDREW RODENSTEIN, Assistant Attorney General; JOHN DOE, Director of the F.B.I.; JOHN DOE, Director of the D.E.A., 2) DENYING MOTION TO APPOINT COUNSEL AND MOTION FOR JOINDER [Doc. Nos. 5, 7]; Defendants. AND 20 3) DISMISSING CIVIL ACTION AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 21 22 23 24 25 26 27 Joseph George (“Plaintiff”), proceeding pro se, and currently housed at the California Correctional Institution located in Tehachapi, California has filed this civil rights action pursuant to 42 U.C.S. (Doc. No. 1). Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 28 1 3:19-cv-1544-AJB-BLM In addition, Plaintiff has filed a “Motion to Appoint Counsel,” along with a “Motion 1 2 for Joinder.” (Doc. Nos. 5, 7.) 3 I. 4 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 10 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 11 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 12 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 13 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 15 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 18 trust account statement, the Court assesses an initial payment of 20% of (a) the average 19 monthly deposits in the account for the past six months, or (b) the average monthly 20 balance in the account for the past six months, whichever is greater, unless the prisoner 21 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 22 custody of the prisoner then collects subsequent payments, assessed at 20% of the 23 preceding month’s income, in any month in which his account exceeds $10, and forwards 24 25 26 27 28 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:19-cv-1544-AJB-BLM 1 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 2 Bruce, 136 S. Ct. at 629. 3 In support of his request to proceed IFP, Plaintiff has submitted a copy of his 4 CDCR Inmate Statement Report. See Doc. No. 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. 5 CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show that Plaintiff had an 6 available balance of zero at the time of filing. Based on this accounting, the Court 7 GRANTS Plaintiff’s request to proceed IFP, and will assess no initial partial filing fee 8 pursuant to 28 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 9 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 10 or criminal judgment for the reason that the prisoner has no assets and no means by 11 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 12 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 13 a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 14 available to him when payment is ordered.”). The Court will further direct the Secretary 15 of the CDCR, or his designee, to instead collect the entire $350 balance of the filing fees 16 required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the 17 installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id. 18 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 19 A. 20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- Standard of Review 21 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 22 statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of 23 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 24 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 27 the targets of frivolous or malicious suits need not bear the expense of responding.’” 28 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 3 3:19-cv-1544-AJB-BLM 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 13 relief [is] ... a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). 18 B. 19 In his Complaint, Plaintiff seeks to hold the Attorney General, Assistant Attorney Application to Plaintiff’s Complaint 20 General, Director of the Federal Bureau of Investigation, and the Director of the Drug 21 Enforcement Administration liable for “conspiracy, failure to protect, investigate and 22 prosecute, concealing murders, accessory, aiding and abetting, material support.” 23 (Compl. at 1-3.) 24 The Court finds Plaintiff’s entire Complaint is patently frivolous. A pleading is 25 “factual[ly] frivolous[]” if “the facts alleged rise to the level of the irrational or the 26 wholly incredible, whether or not there are judicially noticeable facts available to 27 contradict them.” Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). 28 4 3:19-cv-1544-AJB-BLM 1 “[A] complaint, containing as it does both factual allegations and legal 2 conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . . . 3 [The] term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable 4 legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 5 319, 325 (1989). When determining whether a complaint is frivolous, the court need not 6 accept the allegations as true, but must “pierce the veil of the complaint’s factual 7 allegations,” Id. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] 8 ‘delusional,’” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328). 9 Here, the Court finds that Plaintiff’s claims “rise to the level of the irrational or the 10 wholly incredible,” Denton, 504 U.S. at 33, and as such, his Complaint requires dismissal 11 as frivolous and without leave to amend. See Lopez v. Smith 203 F.3d 1122, 1127 n.8 12 (9th Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by 13 definition no merit to the underlying action and so no reason to grant leave to amend.”). 14 III. Motion to Appoint Counsel 15 Plaintiff also seeks the appointment of counsel. However, there is no constitutional 16 right to counsel in a civil case. Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); 17 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And while 28 U.S.C. § 1915(e)(1) 18 grants the district court limited discretion to “request” that an attorney represent an 19 indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 20 2004), this discretion may be exercised only under “exceptional circumstances.” Id.; see 21 also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 22 circumstances requires the Court “to consider whether there is a ‘likelihood of success on 23 the merits’ and whether ‘the prisoner is unable to articulate his claims in light of the 24 complexity of the legal issues involved.’” Harrington v. Scribner, 785 F.3d 1299, 1309 25 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 26 As currently pleaded, Plaintiff’s Complaint demonstrates neither the likelihood of 27 success nor the legal complexity required to support the appointment of pro bono counsel 28 pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer¸560 F.3d at 5 3:19-cv-1544-AJB-BLM 1 970. Therefore, the Court finds no “exceptional circumstances” currently exist and 2 DENIES Plaintiff’s Motion to Appoint Counsel (Doc. No. 5). 3 IV. Conclusion and Order 4 Good cause appearing, the Court: 5 1. 6 (Doc. No. 2); 7 2. 8 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DISMISSES Plaintiff’s Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A and without leave to amend; 9 3. DENIES Plaintiff’s Motion to Appoint Counsel (Doc. No. 5); 10 4. DENIES Plaintiff’s Motion for Joinder as moot (Doc. No. 7) 11 5. CERTIFIES that an IFP appeal from this Order would also be frivolous and 12 therefore, could not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 13 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 14 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 15 would not be frivolous). 16 17 IT IS SO ORDERED. Dated: October 7, 2019 18 19 20 21 22 23 24 25 26 27 28 6 3:19-cv-1544-AJB-BLM

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