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Capers v. United States Justice Dept.

United States District Court, S.D. California

April 5, 2017




         Plaintiff James Joseph Capers has filed a Motion to Provide Proof of Service and a second Motion for Appointment of Counsel. (Docket Nos. 11, 13.) The Court finds the Motions suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d.l. For the reasons set forth below, each Motion is DENIED, and Plaintiffs First Amended Complaint is DISMISSED without prejudice.

         I. Motion to Provide Proof of Service

         Plaintiff moved for a court order ordering a United States Marshall to serve Defendant. (Docket No. 11.) However, Plaintiff did not state what it wanted the Court to serve on Defendant. Even if the Court assumes Plaintiff seeks to have Defendant served with the First Amended Complaint (“FAC”), Plaintiffs request is moot because Defendant has already appeared by moving for an extension of time to file its answer to the FAC. (Docket No. 8.) Accordingly, Plaintiffs Motion to Provide Proof of Service is DENIED.

         II. Second Motion for Appointment of Counsel [1]

         Plaintiffs second Motion for Appointment of Counsel asserts Plaintiff should be appointed counsel because Plaintiff is indigent, disabled, and has been unable to retain an attorney. (Docket No. 13 at 1-3.)

         As the Court stated in its February 7, 2017 Order (docket no. 4), courts have discretion, pursuant to 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 FAC fails to state a claim upon which relief may be granted. In addition, Plaintiff does not demonstrate an inability to represent herself beyond the ordinary burdens encountered by plaintiffs representing themselves pro se. See Garcia v. Smith, No. 10-cv-l 187, 2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012). Therefore, the Court finds that the exceptional circumstances required for the appointment of counsel are not present. Plaintiffs second Motion for Appointment of Counsel is DENIED.

         III. Section 1915 Screening

         The Court granted Plaintiffs Motion to Proceed In Forma Pauperis (“IFP”) (docket no. 4), and must determine whether Plaintiffs FAC sufficiently alleges facts to state a claim for relief. 28 U.S.C. § 1915(e)(2).

         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 Art. Corp. v. Twombly, 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.” Doelv. 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.l (9th Cir. 1985)), it may not ...

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