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Brett v. Brown

United States District Court, E.D. California

March 30, 2017

FRANK BRETT, Plaintiff,
v.
JERRY BROWN, et al., Defendants.

          ORDER

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff has filed a motion for appointment of counsel, a motion to file this case under seal, and an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.[1] For the reasons explained below, plaintiff's application to proceed in forma pauperis is granted, his motions for appointment of counsel and to seal are denied, and the complaint is dismissed with leave to amend.

         I. Appointment of Counsel

         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); Wood v. 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. None of these circumstances are present here. Accordingly, plaintiff's request for appointment of counsel is denied.

         II. Request to Seal

         Plaintiff also request that this case be filed under seal. ECF No. 4. The basis for this request is not clear, but plaintiff appears to contend that sealing the case is appropriate due to threats made against him. Id. Plaintiff has not shown any justification for sealing his complaint and there is a strong presumption against doing so.

         Courts have recognized “a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc'ns, Inc. 435 U.S. 589 (1978). “Unless a particular court record is one ‘traditionally kept secret, ' a ‘strong presumption in favor of access' is the starting point.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mutual Auto. Insurance Company, 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to file a document under seal “bears the burden of overcoming this strong presumption by” articulating “compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure . . . .” Id. (citations omitted).

         Furthermore, the court's local rules provide that “[d]ocuments may be sealed only by written order of the Court, upon a showing required by applicable law.” E.D. Cal. L.R. 141(a). A party seeking to file documents under seal must submit a Request to Seal Documents, which “shall set forth the statutory or other authority for sealing, the requested duration, the identity, by name or category, of persons to be permitted access to the documents, and all other relevant information.” E.D. Cal. L.R. 141(b).

         Plaintiff has failed to provide an adequate basis for filing this case under seal. He generally claims that a man threatened him at a park and that he had been poisoned, but does not indicate how these facts relate to the allegations in the complaint.[2] Moreover, he has failed to comply with the court's local rules for obtaining a sealing order. He does not set forth any statutory basis for filing his complaint under seal, nor does he identify the duration the complaint should be sealed. Accordingly, plaintiff's request to file his complaint under seal is denied.[3]

         III. Request to Proceed In Forma Pauperis and Screening Requirement

         Plaintiff's application to proceed in forma pauperis makes the financial showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. Accordingly, the request to proceed in forma pauperis is granted, see 28 U.S.C. § 1915(a).

         Determining that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. As discussed below, plaintiff's complaint fails to state a claim and must be dismissed.

         Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the ...


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