United States District Court, S.D. California
1) GRANTING PLAINTIFF'S REQUEST TO PROCEED IN
FORMA PAUPERIS; 2) DISMISSING CIVIL ACTION FOR FAILURE TO
STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II)
3) DENYING AS MOOT PLAINTIFF'S REQUEST FOR
COURT-APPOINTED COUNSEL AND 4) GRANTING PLAINTIFF LEAVE TO
AMEND WITHIN 30 DAYS [ECF NOS. 1, 2, 3.]
Gonzalo P. Curiel United States District Judge
8, 2017, Plaintiff Carol Thomas (“Plaintiff”),
proceeding pro se, filed a Complaint alleging gross
negligence against ElderHelp of San Diego
(“Defendant”). (Dkt. No. 1.) Plaintiff
concurrently filed a motion to proceed in forma
pauperis (“IFP”) and a motion for
court-appointed counsel. (Dkt. Nos. 2, 3.) For the reasons
set forth below, the Court GRANTS Plaintiff's motion to
proceed in forma pauperis, DISMISSES Plaintiff's
Complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), and DENIES AS MOOT Plaintiff's
request for court-appointed counsel.
Motion for Leave to Proceed In Forma
parties instituting any civil action, suit or proceeding in a
district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee of
$400. See 28 U.S.C. § 1914(a). The
action may proceed despite a plaintiff's failure to
prepay the entire fee only if he is granted leave to proceed
IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). The plaintiff must submit an affidavit demonstrating
his inability to pay the filing fee, and the affidavit must
include a complete statement of the plaintiff's assets.
28 U.S.C. § 1915(a)(1). The facts as to the
affiant's poverty must be stated “with some
particularity, definiteness, and certainty.” United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).
When a plaintiff moves to proceed IFP, the court first
“grants or denies IFP status based on the
plaintiff's financial resources alone and then
independently determines whether to dismiss the
complaint” pursuant to 28 U.S.C. § 1915(e)(2)
(“§ 1915(e)(2)”). Franklin v.
Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). IFP
status may be acquired and lost during the course of
litigation. Wilson v. Dir. of Div. of Adult Insts.,
No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9,
2009) (internal citation omitted).
Plaintiff has supplied an affidavit in support of her
application to proceed in forma pauperis. (Dkt. No.
2.) Plaintiff declares that she receives $330.72 in
supplemental security income and $585 in social security
benefits per month, resulting in a total monthly income of
$915.72. (Id. at 2.) Plaintiff declares that her
monthly expenses total $930. (Id. at
Plaintiff thus has a monthly deficit of $14.28 per month.
Further, Plaintiff declares that she is $15, 000 in debt.
(Dkt. No. 3 at 6.)
light of Plaintiff s monthly income and economic
circumstances, the Court concludes that Plaintiff cannot
afford the filing fee. Accordingly, the Court GRANTS
Plaintiffs request to proceed in forma pauperis.
Sua Sponte Screening
Plaintiffs IFP status, the Court must review complaints filed
by all persons proceeding IFP and must sua sponte
dismiss any complaint, or any portion of a complaint, which
is frivolous, malicious, fails to state a claim, or seeks
damages from defendants who are immune. See 28
U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203
F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§
complaints 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “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.” Id. The
“mere possibility of misconduct” falls short of
meeting this plausibility standard. Id.; see
also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
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.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen
determining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
plaintiff.”); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
while the court “ha[s] an obligation where the
Plaintiff is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the Plaintiff
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
University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff claims that the Court has jurisdiction to hear her
case under 28 U.S.C. § 1343(a)(3). (Dkt. No. 1 at 1.)
This statute serves as the jurisdictional counterpart to 42
U.S.C. § 1983 (“§ 1983”). Lynch v.
Household Fin. Corp., 405 U.S. 538, 540 (1972). To state
a claim for relief under § 1983, “plaintiffs must
plead that (1) the defendants acting under color of state law
(2) deprived plaintiffs of rights secured by the Constitution
or federal statutes.” Gibson v. United States,
781 F.2d 1334, 1338 (9th Cir. 1986).
Plaintiff fails to show that Defendant acted “under
color of state law.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999). Section 1983 claims
are directed only to acts “under color of state
law” or state action and exclude from its purview
merely private conduct, no matter how discriminatory or
wrongful. Id.; Marsh v. Cty. of San Diego,
680 F.3d 1148, 1158 (9th Cir. 2012). In the absence of
allegations of fact showing a defendant acted under color of
state law, a complaint should be dismissed. See Brunette
v. Humane Soc'y of Ventura Cty., 294 F.3d 1205, 1214
(9th Cir. 2002), as amended on denial of reh'g and
reh'g en banc (Aug. 23, 2002) (affirming the
district court's dismissal of a complaint for failure to
state a claim where the plaintiff failed to demonstrate that
the defendants engaged in state action). ...