Zapata v. Parkway Home Owners Association, Inc.

Filing 3

ORDER Granting Plainitiff's 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file Plaintiff's Petition for Review which the Court construes as a Complaint. Plaintiff's Complaint is Dismiss ed without prejudice for failure to state a claim upon which relief can be granted. Plaintiff's 2 Motion to Appoint Counsel is Denied without prejudice. Plaintiff shall have until 6/15/2013 to file an Amended Complaint. Signed by Magistrate Judge George Foley, Jr on 5/17/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LEONARDO A. ZAPATA

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Plaintiffs,
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vs.
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PARKWAY HOME OWNERS ASSOCIATION, )
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Defendants. )
__________________________________________)

Case No. 2:13-cv-00495-GMN-GWF
ORDER
Application to Proceed in Forma
Pauperis (#1); Motion for Appointment
of Counsel (#2); Screening of
Complaint

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This matter comes before the Court on Plaintiff Leonardo Zapata’s (“Plaintiff”) Application
to Proceed in Forma Pauperis (#1), filed on March 22, 2013.

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DISCUSSION

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I.

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Plaintiff filed this instant action and attached a financial affidavit to his Application as

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required by 28 U.S.C. § 1915(a). Having reviewed Plaintiff’s financial affidavit under section

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1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. Therefore, Plaintiff's request

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to proceed in forma pauperis in federal court is granted.

Application to Proceed In Forma Pauperis

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II.

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

Screening the Complaint

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complaint under section 1915(a). Federal courts are given the authority to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or

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seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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When a court dismisses a complaint under section 1915(a), the plaintiff should be given leave to

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amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of

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the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70

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F.3d 1103, 1106 (9th Cir. 1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

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719, 723 (9th Cir. 2000). A properly pled complaint must provide a “short and plain statement of

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the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.

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Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the

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elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v.

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Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations

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contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal,

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129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have not

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crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550

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U.S. at 570.

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To his Application, Plaintiff attached a 491-page “Petition for Review and Appeal,”

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comprised almost entirely of documents pertaining to an underlying complaint Plaintiff filed with

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the Department of Housing and Urban Development (“HUD”). Upon review of the Petition’s

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attachments, it appears Plaintiff seeks to assert a claim under the Fair Housing Act (“FHA”), Title

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VIII of the Civil Rights Act, 42 U.S.C. § 3601 et seq. In the Petition, however, Plaintiff merely

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states he “petitions/appeals the Court for review of the [HUD’s] decision of ‘No Reasonable

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Cause,’ entered on May 22, 2011.” Plaintiff does not plead any of the facts that allegedly comprise

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his claim against Defendant. Therefore, so far as the Court can construe Plaintiff’s Petition as a

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complaint, it does not provide a “short and plain statement of the claim showing that [Plaintiff] is

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entitled to relief.” Accordingly, the Court will dismiss Plaintiff’s complaint with leave to amend.

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In the event Plaintiff elects to proceed in this matter by filing an amended complaint, he is

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instructed to consider the statue of limitations imposed by the FHA. Although Plaintiff asserts he
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received the HUD’s dismissal less than two years ago, “[a]n aggrieved person may commence a

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civil action in an appropriate United States district court or State court not later than 2 years after

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the occurrence or the termination of an alleged discriminatory housing practice.” 42 U.S.C. §

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3613(a)(1)(A) (emphasis added). However, “the computation of such 2-year period shall not

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include any time during which an administrative proceeding under this subchapter was pending

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with respect to a complaint or charge under this subchapter based upon such discriminatory housing

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practice.” Id. at § 3613(a)(1)(B).

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Plaintiff is also informed that the Court cannot refer to a prior pleading to make any

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amended complaint complete. Local Rule 15-1 requires that an amended complaint be complete in

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itself without reference to any prior pleading. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Once Plaintiff files an amended complaint, the original pleading no longer serves any function in

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the case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.

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III.

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Plaintiffs have no absolute right to counsel in a civil proceeding. Hedges v. Resolution

Motion for Appointment of Counsel

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Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Under 28 U.S.C. § 1915(e)(1), courts have

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discretion to request “an attorney represent [an] indigent civil litigant upon a showing of

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exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v.

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County of King, 883. F.2d 819, 823 (9th Cir. 1989). The existence of exceptional circumstances is

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determined by four factors: (1) the plaintiff's financial resources; (2) the efforts made by the

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plaintiff to secure counsel; (3) the meritoriousness of the plaintiff's claim; and (4) the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Ivey

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v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982); Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1986).

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Although Plaintiff does not have the financial resources to pay attorneys’ fees, attorneys

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frequently agree to handle civil rights cases on a contingent fee basis. Plaintiff claims in his

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Motion (#2) that he unsuccessfully sought legal assistance from Legal Aid and HUD, but makes no
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representations that he attempted to secure private counsel on a contingency basis. Furthermore,

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the Court is unable to ascertain the meritoriousness of his claims without a properly pled complaint.

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Therefore, the Court finds Plaintiff has not demonstrated the existence of exceptional

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circumstances that warrant appointment of counsel in this case. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed In Forma Pauperis
(#1) is granted. Plaintiff shall not be required to pay the $350.00 filing fee.
IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.
IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s Petition for
Review (#1-1, 1-2, 1-3, 1-4, 1-5), which the Court construes as a complaint.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is dismissed without prejudice
for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (#2) is
denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff shall have until June 15, 2013 to file an
amended complaint.
DATED this 17th day of May, 2013.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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