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Bruce Derrick Calhoun v. San Diego County

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 22, 2011

BRUCE DERRICK CALHOUN, PLAINTIFF,
v.
SAN DIEGO COUNTY, ET AL.,
DEFENDANT.

The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM; APPOINTMENT OF COUNSEL DENYING MOTION FOR

On June 9, 2011, Plaintiff filed a Complaint, a Motion to Proceed In Forma Pauperis ("IFP Motion"), and a Motion for Appointment of Counsel. For the reasons discussed below, the IFP Motion is granted, the Complaint is dismissed with leave to amend, and the Motion for Appointment of Counsel is denied without prejudice.

I. DISCUSSION

A. Motion to Proceed IFP

Upon review of Plaintiff's affidavit in support of his IFP Motion, the Court finds that Plaintiff has made a sufficient showing of inability to pay the filing fees required to prosecute this action. Accordingly, Plaintiff's IFP Motion is GRANTED.

B. Failure to State a Claim

Although the Court will allow Plaintiff to proceed IFP, Plaintiff's Complaint must be dismissed for failure to state a claim. The Court is under a continuing duty to dismiss an IFP case whenever the Court determines that the action "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff's Complaint is incomprehensible and appears to be frivolous. Therefore, the Court dismisses Plaintiff's Complaint for failure to state a claim. The Court grants Plaintiff leave to file an amended complaint on or before August 5, 2011. Failure to do so will result in the closing of this case.

C. Appointment of Counsel

There is no right to counsel in civil cases, and district courts may appoint counsel only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both 'likelihood of success on the merits and the ability of the plaintiff to articulate his 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.

At this point in time, the Court cannot say that there is any likelihood of success on the merits. Therefore, the Court DENIES without prejudice Plaintiff's Motion for Appointment of Counsel.

II. CONCLUSION

Plaintiff's Motion to Proceed IFP is GRANTED. Plaintiff's Motion for Appointment of Counsel is DENIED without prejudice. Plaintiff's Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Plaintiff may file a First Amended Complaint on or before August 5, 2011. If Plaintiff fails to do so, the Court shall close this case.

IT IS SO ORDERED.

20110722

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