United States District Court, S.D. California
ORDER GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS, DENYING REQUEST FOR APPOINTMENT OF COUNSEL AND
DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED
Cathy Ann Bencivengo United States District Judge.
matter is before the Court on Plaintiff's application for
leave to proceed in forma pauperis
(“IFP”) [Doc. No. 2] and his request for
appointment of counsel [Doc. No. 3]. As discussed below, the
application to proceed IFP is granted, the request to proceed
IFP is denied, and the complaint is dismissed for failure to
state a claim upon which relief can be granted.
to Proceed In Forum Pauperis
to 28 U.S.C. § 1915(a), a court may authorize the
commencement of a suit without prepayment of fees if the
plaintiff submits an affidavit, including a statement of all
his or her assets, showing that he or she is unable to pay
filing fees. Plaintiff has submitted an affidavit that
sufficiently shows he lacks the financial resources to pay
filing fees. See S.D. Cal. CivLR 3.2(d).
Accordingly, the Court hereby GRANTS Plaintiff's Motion
to Proceed In Forma Pauperis.
Sponte Screening per 28 U.S.C. §
complaint filed by any person proceeding in forma
pauperis pursuant to 28 U.S.C. §1915(a) is subject
to mandatory and sua sponte review and dismissal by
the court to the extent it is “frivolous, malicious,
failing to state a claim upon which relief can be granted, or
seeking monetary relief from a defendant immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ([T]he
provisions of 28 U.S.C. § 1915(e)(2)(b) are not limited
to prisoners.”); Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000) (“[S]ection 1915(e) not only
permits but requires a district court to dismiss an in forma
pauperis complaint that fails to state a claim.”); see
also Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998) (analogizing § 1915(e)(2) to Rule 12(b)(6)
for purposes of determining if the district court's
sua sponte dismissal of an IFP complaint for failure
to state a claim was subject to de novo review on appeal.)
complaint consists of a one sentence allegation that
“Defendant San Diego Employees' Retirement System
violated the Americans With Disabilities Act [ADA] when it
denied Plaintiff's application for disability retirement
from the City of San Diego Fire Rescue Department, knowing
that Plaintiff properly qualified for disability retirement,
having been found unable to perform the duties of his
position by reason of becoming permanently incapacitated due
to injuries suffered in the line of duty.” This
statement is replete with legal conclusions but lacks factual
allegations which, if accepted as true, state a claim for
relief that is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Moreover, to the extent Plaintiff alleges he is totally
disabled or a former employee, he cannot sue under Title I of
the ADA. See Weyer v. Twentieth Century Fox Film
Corp., 198 F.3d 1104, 1112 (9th Cir. 2000)
(“[S]omeone who is totally disabled cannot sue under
Title I's unambiguous provisions. . . . Title I also
unambiguously excludes former employees.”). To the
extent Plaintiff is contesting a finding that is not entitled
to disability benefits because he is not disabled, it is
unclear how such a finding would constitute a denial of
benefits “by reason of the plaintiff's
disability” as would be required to state a claim under
Title II of the ADA. See Thompson v. Davis, 295 F.3d
890, 895 (9th Cir. 2002); see also Zimmerman v. Or.
Dep't of Justice, 170 F.3d 1169, 1178 (9th Cir.
1999) (holding that ADA claims concerning employment
discrimination may not be asserted under Title II, which
covers government entities). Finally, to the extent Plaintiff
is suing Defendant in its capacity as administrator of
Plaintiff's former employer's disability insurance
policy, it is not a proper defendant in a lawsuit under Title
III of the ADA. See Weyer, 198 F.3d at 1113-14.
light of the foregoing, the Court DISMISSES Plaintiff's
Complaint for failing to state a claim upon which relief can
be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
to Appoint Counsel
has filed a Motion to Appoint Counsel. In light of the
Court's decision to sua sponte dismiss the
Complaint, Plaintiff's request for appointment of counsel
is DENIED without prejudice.
reasons discussed above, the Court:
GRANTS Plaintiff's application to proceed IFP. [Doc No.
DENIES without prejudice Plaintiff's request for