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Smith v. United States Postal Service

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 17, 2007

KARL SMITH, PLAINTIFF,
v.
UNITED STATES POSTAL SERVICE, DEFENDANT.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Granting Motion to Proceed In Forma Pauperis; Denying Motion for Appointment of Counsel; Dismissing Complaint with Leave to Amend

Plaintiff Karl Smith has filed a complaint alleging discrimination and violation of the United States constitution. Plaintiff also moves the Court for appointment of counsel and for leave to proceed in forma pauperis.

1. Motion to Proceed IFP

Pursuant to 28 U.S.C. § 1915(a)(1), any person may be granted leave to proceed with an action without prepayment of fees if that person is unable to pay such fees. Here, Plaintiff has submitted an affidavit stating he is not currently employed, has not been employed within the last twelve months, has no savings or checking account or other significant assets, and receives only $940 each month in Social Security benefits. As a result, the Court GRANTS Plaintiff's motion to proceed in forma pauperis.

2. Initial Screening per 28 U.S.C. § 1915(e)(2)

Pursuant to 28 U.S.C. § 1915(e)(2), the Court must sua sponte dismiss any IFP complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."). This section mandates that the court reviewing an IFP suit make and rule on its own motion to dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id.

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court has a duty to liberally construe a pro se's pleadings, see Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003), which is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

Here, the Court cannot ascertain what federal claim Plaintiff is attempting to assert. The only factual allegation contained in Plaintiff's complaint is that he is "being giving [sic] adulterated mail every day inside of [his] P.O. Box." On the civil cover sheet Plaintiff filed along with his initial complaint, he cites 5 U.S.C. § 552a. That statute, however, discusses records maintained on individuals by government and administrative agencies and appears irrelevant to the conduct alleged by Plaintiff. In the text of his one-page complaint, Plaintiff first states he is proceeding under Title VI of the Civil Rights Act. However, Title VI prohibits discrimination by certain Federally-funded State or local government programs or agencies. 42 U.S.C. § 2000d; Radcliff v. Landau, 883 F.2d 1481, 1482 (9th Cir. 1989). The U.S. Postal Service is not a federally-funded program.

Plaintiff also states his right to due process under the Fifth and Fourteenth Amendments are being violated. The Due Process Clause of the Fourteenth Amendment prohibits states from depriving "any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. This Clause clothes individuals with the right to both substantive and procedural due process. United States v. Salerno, 481 U.S. 739, 746 (1987) (analyzing the Due Process Clause of the Fifth Amendment). Substantive due process "prevents the government from engaging in conduct that shocks the conscience . . . or interferes with rights implicit in the concept of ordered liberty . . . ." Id. (internal quotation marks and citations omitted). Procedural due process requires that the government's deprivation of life, liberty, or property, even if consistent with substantive due process, "be implemented in a fair manner." Id. (internal quotation marks and citation omitted).

To plead procedural due process violations, a plaintiff must allege: (1) a life, liberty or property interest exists and has been subject to interference by the state; and (2) the procedures attendant upon the deprivation of an existing interest were constitutionally insufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1990). To plead a substantive due process violation, a plaintiff must allege governmental action which deprives plaintiff of a life, liberty or property interest which may not be deprived regardless of the procedure employed. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846-50 (1992). The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity. See, e.g., Planned Parenthood of Southeastern Pa., 505 U.S. at 846-50 (describing cases in which substantive due process rights have been recognized).

Here, Plaintiff's allegation that he is being given adulterated mail does not state a claim for violation of due process. Plaintiff has not identified any deprivation of life, liberty or property, and has not alleged any conduct that shocks the conscience. On September 15, 2007, Plaintiff filed a supplemental document in support of his complaint. That document, however, does not state any additional legal or factual basis for Plaintiff's claim. As a result, the Court must DISMISS Plaintiff's complaint with leave to amend.

3. Motion for Appointment of Counsel

Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action.

The Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), however, district courts are granted discretion to appoint counsel for indigent persons under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of success on the merits and the ability of the plaintiff to articulate [her] claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision.'" Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

Here, exceptional circumstances do not require the appointment of counsel. Plaintiff has not yet put before the Court any facts or cognizable legal theory which would merit further proceedings. As a result, the Court DENIES Plaintiff's motion for appointment of counsel without prejudice to being renewed if he files an amended complaint.

Conclusion

For the reasons set forth herein, the Court GRANTS Plaintiff's motion to proceed in forma pauperis and DISMISSES Plaintiff's complaint under 28 U.S.C. § 1915(a)(1). Plaintiff may file an amended complaint within 45 days of the filing of this order. Plaintiff's motion for appointment of counsel is DENIED.

IT IS SO ORDERED.

20071017

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