United States District Court, S.D. California
ORDER (1) GRANTING SECOND MOTION TO PROCEED IN FORMA
PAUPERIS; (2) DENYING SECOND MOTION FOR APPOINTMENT OF
COUNSEL; (3) DISMISSING FIRST AMENDED COMPLAINT FOR FAILING
TO STATE A CLAIM
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.
January 30, 2017, Plaintiff Chase Hayes filed his second
Motions to Proceed In Forma Pauperis
(“IFP”) and for Appointment of Counsel, along
with his proposed First Amended Complaint
(“FAC”). (Docket No. 7.) For the reasons
stated below, the second Motion to Proceed IFP is GRANTED,
the second Motion for Appointment of Counsel is DENIED, and
the proposed First Amended Complaint is DISMISSED without
Motion to Proceed IFP
parties instituting any civil action in a district court must
pay a filing fee. 28 U.S.C. § 1914(a). An action may
proceed despite a plaintiffs failure to prepay the entire fee
only if the plaintiff is granted leave to proceed IFP
pursuant to 28 U.S.C. § 1915(a).
28 U.S.C. § 1915(a)(1),
any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding... without prepayment of fees or security
therefor, by a person who submits an affidavit that includes
a statement of all assets such [person] possesses that the
person is unable to pay such fees or give security therefor.
second Motion to Proceed IFP indicates he receives $168.80
per week in disability benefits, and $170.00 a month in the
form of food stamps. (Docket No. 7 at 1.) Plaintiff further
indicates his expenses total approximately $800.00 per month.
(Id.) The Court finds Plaintiff has sufficiently
stated that he cannot afford to pay the filing fee.
Therefore, the Motion is GRANTED, and Plaintiffs proposed
First Amended Complaint (docket no. 7) shall be deemed filed
nunc pro tunc to the date of this Order.
Motion to Appoint Counsel
also filed a second Motion for Appointment of Counsel, in
which he asserts he has “no ability to articulate his
claim in a legal manner” due to “the complexity
of the legal issues involved in Longshore and Harbor Workers
Compensation Law, et al.” (Docket No. 7 at 2.)
Court stated in its January 24, 2017 Order (docket no. 6),
courts have discretion, pursuantto 28 U.S.C. §
1915(e)(1) (1996), to appoint counsel for indigent civil
litigants upon a showing of exceptional circumstances.
“A finding of exceptional circumstances requires an
evaluation of both the likelihood of success on the merits
and the ability of the petitioner to articulate his claims
pro se in light of the complexity of the legal issues
involved.” Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991) (internal citations omitted).
“Neither of these factors is dispositive and both must
be viewed together before reaching a decision.”
Id. (internal citations omitted).
Court cannot say there is any likelihood of success on the
merits of Plaintiff s claims because, as will be explained in
further detail below, Plaintiffs First Amended Complaint
fails to state a claim upon which relief may be granted. In
addition, Plaintiff does not demonstrate an inability to
represent himself beyond the ordinary burdens encountered by
plaintiffs representing themselves Pro se, or that
he has even attempted to obtain counsel to represent him.
See Garcia v. Smith, No. 10-cv-1187, 2012 WL
2499003, at *4 (S.D. Cal. June 27, 2012) (“Merely
alleging indigence is insufficient to entitle him to
appointed counsel; he must also demonstrate that he made a
good faith effort, but was unable, to obtain counsel").
Therefore, the Court finds that the exceptional circumstances
required for the appointment of counsel are not
present. Plaintiffs Motion is DENIED.
Section 1915 Screening
section 1915(e) of title 28 of the United States Code, the
Court must sua sponte dismiss IFP complaints, or any
portions thereof, which are frivolous, malicious, fail to
state a claim, or which seek damages from defendants who are
immune. See Lopez v. Smith,203 F.3d 1122, 1126-27
(9th Or. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)). “[T]he provisions of ...