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Catherine E. West, R.N., B.S.N., P.H.N v. Nursing

August 23, 2011

CATHERINE E. WEST, R.N., B.S.N., P.H.N., PLAINTIFF,
v.
NURSING, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING RENEWED MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 6] DENYING REQUEST FOR CALIFORNIA BOARD of REGISTERED APPOINTMENT OF COUNSEL; SUA SPONTE DISMISSING 1915(e)(2)(B) FOR FAILURE TO STATE A CLAIM COMPLAINT UNDER 28 U.S.C. §

On August 8, 2011, Plaintiff Catherine E. West, proceeding pro se, filed a complaint against Defendants California Board of Registered Nursing and its executive director, as well as California's Employment Development Department and its chief deputy director. Although the precise nature of Plaintiff's claims is unclear, she appears to challenge the revocation or withholding of her license to practice as a Registered Nurse. Plaintiff also filed a motion to proceed in forma pauperis and a motion requesting appointment of counsel. Because the Court found Plaintiff's motion to proceed in forma pauperis insufficiently supported, the Court denied the motion and instructed Plaintiff to pay the $350 filing fee required to commence this action on or before August 29, 2011. See Order, Doc. No. 4. In lieu of paying the filing fee, Plaintiff has filed a renewed motion to proceed in forma pauperis, which more precisely details her net income vis-a-via her monthly expenditures and ongoing debts and other liabilities. Based thereon, the Court is now able to conclude that Plaintiff should be allowed to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff's amended submission demonstrates that she lacks the financial resources to pay the costs of commencing this action. Accordingly, the Court GRANTS Plaintiff's motion to proceed in forma pauperis.

REQUEST FOR APPOINTMENT OF COUNSEL

The Court previously denied Plaintiff's request for appointment of counsel as moot based on the denial of her motion to proceed in forma pauperis. The Court now reconsiders Plaintiff's request on the merits, and determines that the request for appointment of counsel must be denied.

In civil proceedings such as this one, there is no absolute right to counsel. Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Federal courts do not have the authority to make coercive appointments of counsel. Mallard v. United States District Court, 490 U.S. 296, 310 (1989). However, "[t]itle 28 U.S.C. § 1915(e)(1) permits the district court, in its discretion, to 'request an attorney to represent any person unable to afford counsel.'" Solis v. County of Los Angeles, 514 F.3d 946, 958 (9th Cir. 2008) (quoting 28 U.S.C. § 1915(e)(1)); see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Such discretion may be exercised upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). "To show exceptional circumstances the litigant must demonstrate the likelihood of success and complexity of the legal issues involved." Burns, 883 F.2d at 823 (citation omitted); Hedges, 32 F.3d at 1363; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). Neither the likelihood of success nor the complexity of the case are dispositive; both must be considered. Terrell, 935 F.2d at 1017; Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

The Court DENIES Plaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. Furthermore, as more fully explained below, Plaintiff does not demonstrate any likelihood of success, as she fails to state a claim on which relief may be granted.

SCREENING PURSUANT TO 28U.S.C.§1915(E)(2)(B)

When a plaintiff proceeds in forma pauperis, the complaint is subject to mandatory screening and the Court must order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 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.").

"[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). In addition, the Court has a duty to liberally construe a pro se's pleadings. Id. In giving liberal interpretation to a pro se 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). For the reasons set forth below, the Court concludes Plaintiff's complaint does not meet the federal pleading rules and fails to state a claim upon which relief may be granted.

Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "enough facts to state a claim to relief that is plausible on its face." See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (citation omitted). Additionally, under Federal Rule of Civil Procedure 10(b), a plaintiff should state "each claim founded on a separate transaction or occurrence" as a "separate count." Fed. R. Civ. P. 10(b). Rule 10 provides that a "party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Id.

Upon due consideration, Plaintiff's complaint fails to satisfy the pleading standards of Rule 8(a)(2) and Rule 10(b), and is therefore subject to dismissal. Plaintiff's complaint is more than thirty pages in length, rambling, and at times incoherent. It does not clearly identify the purported causes of action, but rather makes offhand references throughout to various constitutional principles. Also attached are more than sixty pages of extraneous documents. Plaintiff's complaint does not satisfy Rule 8(a)(2) because it is anything but a "short and plaint statement" of claims entitling her to relief. Her complaint also fails to satisfy the requirements of Rule 10(b).

In addition, Plaintiff's complaint is subject to dismissal under Rule 12(b)(6) because it fails to state a claim upon which relief can be granted. The Court liberally construes Plaintiff's complaint as alleging various violations of her civil rights under 42 U.S.C. § 1983. Specifically, Plaintiff, formerly a licensed, registered nurse in the State of California, complains of two California statutes which she claims violate, inter alia, her Fourth and Fourteenth Amendment rights, including Title 16 of the California Code of Regulations, section 1419, which provides:

For a license that expires on or after March 1, 2009, as a condition of renewal, an applicant for renewal not previously fingerprinted by the board, or for whom a record of the submission of fingerprints no longer exists, is required to furnish to the Department of Justice, as directed by the board, a full set of fingerprints for the purpose of conducting a criminal history record check and to undergo a state and federal level criminal offender record information search conducted through the Department of Justice. Failure to submit a full set of fingerprints to the Department of Justice on or before the date required for renewal of a license is grounds for discipline by the board.

Plaintiff also appears to challenge the constitutionality of California Business and Professions Code ...


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