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Hayes v. Nassco

United States District Court, S.D. California

February 14, 2017

CHASE HAYES, Plaintiff,
v.
NASSCO, Defendant.

          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

          HON. ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.

         On 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”).[1] (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 prejudice.

         I. Motion to Proceed IFP

         All 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).

         Under 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.

         Plaintiffs 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.

         II. Motion to Appoint Counsel

         Plaintiff 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.)

         As the 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).

         The 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.[2] Plaintiffs Motion is DENIED.

         III. Section 1915 Screening

         A. Legal Standard

         Under 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 ...


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