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Hayes v. Nassco

United States District Court, S.D. California

March 15, 2017

CHASE HAYES, Plaintiff,
v.
NASSCO, Defendant.

          ORDER (1) DENYING THIRD MOTION FOR APPOINTMENT OF COUNSEL; (2) DISMISSING SECOND AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM

          HON. ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.

         On February 17, 2017, Plaintiff Chase Hayes filed his Second Amended Complaint ("SAC"), [1] which incorporates his third Motion for Appointment of Counsel.[2] (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.

         I. Motion to Appoint Counsel

         Plaintiffs 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.)

         The 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).

         As will 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.

         II. 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 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).

         Every 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).

         While a 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).

         B. Discussion

         Plaintiffs SAC must be dismissed for failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e).

         The SAC 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 ...


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