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George Patrick Stone v. Conrad Preby's; Sharp Mesa

January 10, 2013

GEORGE PATRICK STONE,
PLAINTIFF,
v.
CONRAD PREBY'S; SHARP MESA VISTA HOSPITAL; DAVID BERMAN, DOCTOR; ELLIOT KANTER; ALVARADO
HOSPITAL; SAN DIEGO COUNTY
SHERIFF; EL CAJON POLICE DEPARTMENT; KFR STAR REALTY; EL CAJON SUPERIOR COURT; ELLIOTT KANTER LAW OFFICES; AND SAN DIEGO COUNTY HOUSING, DEFENDANTS.



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

ORDER: (1)DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL [Doc. No. 9] AND (2) SUA SPONTE DISMISSING SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

[Doc. No. 8]

George Patrick Stone ("Plaintiff") commenced this action on August 17, 2012, attempting to allege that his civil rights were violated. [Doc. No. 1.] Plaintiff filed a motion to proceed in forma pauperis ("IFP") with his complaint. [Doc. No. 2.] On August 21, 2012, the Court granted Plaintiff's motion for leave to proceed IFP and sua sponte dismissed Plaintiff's complaint with leave to amend. [Doc. No. 3.] Plaintiff filed a First Amended Complaint ("FAC") on September 14, 2012. On October 9, 2012, the Court dismissed Defendant El Cajon Superior Court with prejudice, and also dismissed Plaintiff's FAC with leave to amend. [Doc. No. 7.] Plaintiff filed a Second Amended Complaint ("SAC") on November 11, 2012. [Doc. No. 8.] Plaintiff subsequently filed a motion to appoint counsel. [Doc. No. 9.] For the foregoing reasons, the Court DENIES Plaintiff's motion to appoint counsel. Having considered Plaintiff's SAC, the Court DISMISSES Plaintiff's SAC without leave to amend.

DISCUSSION

I. Plaintiff's Motion to Appoint 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 her physical liberty if she loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised 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 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)).

The Court DENIES Plaintiff's motion 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.

II. Sua Sponte Dismissal

A. Legal Standard

After granting IFP status, the Court must dismiss the case if the complaint "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an IFP complaint that fails to state a claim).

"Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). In order to properly state a claim for relief, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must contain more than a "labels and conclusions" or a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id.

Although pro se complaints enjoy "the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), Rule 8 still "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. The rule of liberal construction "applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin, 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

Further, the Ninth Circuit has recognized that plaintiffs do not enjoy unlimited opportunities to amend their complaints. See McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996) (affirming district court's dismissal of the plaintiff's third amended complaint without leave to amend ...


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