United States District Court, S.D. California
ORDER (1) DENYING THIRD MOTION FOR APPOINTMENT OF
COUNSEL; (2) DISMISSING SECOND AMENDED COMPLAINT FOR FAILING
TO STATE A CLAIM
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.
February 17, 2017, Plaintiff Chase Hayes filed his Second
Amended Complaint ("SAC"),  which incorporates his third
Motion for Appointment of Counsel. (Docket No. 10.) For the
reasons stated below, the third Motion to Motion for
Appointment of Counsel is DENIED, and the Second Amended
Complaint is DISMISSED without leave to amend.
Motion to Appoint Counsel
third Motion for Appointment of Counsel asserts Plaintiff
should be appointed counsel because he is "an indigent
and has no ability to articulate his claim IN FORMA PAUPERIS
[sic]." (Docket No. 10 at 1.) Plaintiff states he has
attempted to retain counsel and has contacted several law
firms, but was either unable to afford their services or
unable to ultimately secure counsel. (Id. at 1-2.)
Court has previously advised Plaintiff that a showing of
exceptional circumstances is necessary prior to a court's
exercise of its discretion to appoint counsel under 28 U.S.C.
§ 1915(e)(1) (1996). "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).
be explained in further detail below, Plaintiffs SAC fails to
state a claim upon which relief may be granted. Plaintiff
also does not demonstrate an inability to represent himself
beyond the ordinary burdens encountered by plaintiffs
representing themselves pro se. See Garcia v. Smith,
No. 10-cv-1187, 2012 WL 2499003, at *4 (S.D. Cal. June 27,
2012). Thus, the Court finds that the exceptional
circumstances required for the appointment of counsel are not
present. Therefore, 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 Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)). "[T]he provisions of section 1915(e)(2)(B)
are not limited to prisoners." Calhoun v.
Stahl, 254 F.3d 845, 845 (9th Cir. 2001).
complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but "[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombfy, 550 U.S. 544, 555 (2007)). "When
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief."
Id. at 679; see Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998) (noting that section
1915(e)(2) "parallels the language of Federal Rule of
Civil Procedure 12(b)(6)"). "Determining whether a
complaint states a plausible claim for relief [is]... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Iqbal, 556 U.S. at 679. The "mere possibility
of misconduct" falls short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret Serv.,
572 F.3d 962, 969 (9th Cir. 2009).
plaintiffs factual allegations are taken as true, courts
"are not required to indulge unwarranted
inferences." Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Indeed, while courts "have an
obligation where the petitioner is pro se, particularly in
civil rights cases, to construe the pleadings liberally and
to afford the petitioner the benefit of any doubt, "
Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th
Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026,
1027 n.1 (9th Cir. 1985)), it may not "supply essential
elements of claims that were not initially pled."
Ivey v. Bd. of Regents of the Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982).
SAC must be dismissed for failing to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e).
alleges NASSCO employee Paul Goyette "laid Plaintiff off
due to Plaintiff injuries [sic], " even though Mr.
Goyette "promised that the only way Plaintiff would be
laid off is by seniority if Plaintiff accept a light duty job
due to work related injuries to both knees and back."
(Docket No. 10 at 2.) Plaintiff does not indicate when or
where Mr. Goyette made the promise, but it appears it was in
or around the year 1981 because the SAC further alleges
Plaintiff was laid off "after being on the job for less
than several months, " and "NASSCO only gave
[Plaintiff] a small lump settlement which included disability
payments .., which was done in 1981." (Id.)
Thus, it appears ...