United States District Court, S.D. California
ORDER: (1) DENYING MOTION TO PROVIDE PROOF OF
SERVICE; (2) DENYING SECOND MOTION FOR APPOINTMENT OF
COUNSEL; and (3) DISMISSING COMPLAINT FOR FAILING TO STATE A
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE
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.
Motion to Provide Proof of Service
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.
Second Motion for Appointment of Counsel
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.)
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).
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
Section 1915 Screening
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).
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 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).
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 ...