United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
This matter is before the court on numerous motions. On October 1, 2014, the case was before the court for hearing on plaintiff's motions for a preliminary injunction, styled as a motion to stay, for terminating sanctions, and appointment of counsel, ECF No. 37, and the government's motion to dismiss plaintiff's first amended complaint for lack of jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6), ECF No. 44. Trial Attorney Nithya Senra of the Tax Division of the United States Department of Justice appeared on behalf of the government; plaintiff appeared pro se.
The procedural history of this case is somewhat muddled due to plaintiff's numerous filings. Subsequent to the filing of defendant's motion to dismiss, plaintiff filed a second amended complaint, which the court construes as a motion to amend. ECF No. 51. Plaintiff has not been granted leave to file that second amended complaint. Nonetheless, the United States has also moved to dismiss that complaint. ECF No. 55. Since the hearing, plaintiff has also filed two motions to quash IRS summons, ECF Nos. 59, 68, another motion for a preliminary injunction, again styled as a motion for a stay, and a motion for sanctions, ECF No. 66.
For the reasons discussed below, plaintiff's motion for appointment of an attorney, ECF No. 37, is denied. Further, it is recommended that the government's motion to dismiss be granted, that the first amended complaint be dismissed without further leave to amend, that plaintiff's motion to amend be denied as futile, and further, that all other pending motions be denied as moot.
I. Procedural History
On April 22, 2013, plaintiff filed a complaint against the United States under the pseudonym "Ram Heram." ECF No. 1. The government moved for a more definite statement, requesting that plaintiff be required to file an amended complaint using his actual name. ECF No. 16. That motion was granted, ECF No. 35, and on August 12, 2014, plaintiff filed his first amended complaint, identifying himself as Raghvendra Singh, ECF No. 36. Plaintiff also filed a motion for terminating sanctions, appointment of counsel, and for a preliminary injunction (styled as motion for stay). ECF No. 37.
On August 29, 2014, the government moved to dismiss the first amended complaint, and noticed the motion for hearing for on October 1, 2014. The court subsequently continued the hearing on plaintiff's motions, which were noticed for hearing on September 17, 2014, to October 1, 2014, so all motions could be addressed together. ECF No. 50.
On September 18, 2014, plaintiff, without consent from opposing counsel or leave of court, filed a second amended complaint. ECF No. 51; See Fed.R.Civ.P. 15(a). Just prior to the October 1, 2014 hearing, defendant filed a motion to dismiss plaintiff's second amended complaint, and noticed that motion for hearing on October 29, 2014. ECF No. 55. On October 1, 2014, the court heard argument on the government's two motions to dismiss and plaintiff's motions for an attorney, sanctions, and a preliminary injunction. ECF No. 58.
On October 3, 2014, just two days after the hearing, plaintiff filed a motion to quash an IRS summons, which he styles as a motion to quash a subpoena. ECF Nos. 59. Approximately two weeks later, plaintiff filed another motion for a preliminary injunction, again styled as a motion for a stay, as well as a request for sanctions. ECF No. 59. Then, on December 4, 2014, Plaintiff once again moved for a preliminary injunction and for sanctions. ECF No. 66.
On January 8, 2015, plaintiff filed another motion to quash an IRS summons, which is currently noticed for hearing on February 18, 2015. As discussed below, the court lacks jurisdiction over plaintiff's claims and therefore this case must be dismissed.
I. Motion for Appointment of Counsel
Plaintiff requests that the court appoint him an attorney, arguing, without elaboration, that appointment is needed to protect the interest of the public. ECF No. 37 at 3. That motion is denied.
28 U.S.C. § 1915(e)(1) authorizes the appointment of counsel to represent an indigent civil litigant in certain exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Woody. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.1990); Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional circumstances exist, the court must evaluate (1) the plaintiff's likelihood of success on the merits; and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff's likelihood of success, the complexity of the issues, or the degree of plaintiff's ability to articulate his claims amount to exceptional circumstances justifying the appointment of counsel.
II. Motion to Dismiss the First Amended Complaint
Defendant moves to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and failure to state ...