United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
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. 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.
Appointment of Counsel
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.
Request to Seal
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.
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).
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).
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. 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
Request to Proceed In Forma Pauperis and Screening
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).
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.
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).
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