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Dickerson v. State

United States District Court, S.D. California

July 14, 2017

KIZER DICKERSON, Plaintiff,
v.
STATE OF CALIFORNIA, Defendant.

          ORDER: (1) DENYING IN FORMA PAUPERIS APPLICATION; (2) DENYING REQUEST FOR APPOINTMENT OF COUNSEL

          Hon Roger T Benitez United States District Court Judge

         On July 5, 2017, Plaintiff Kizer Dickerson filed a civil rights action for declaratory relief against the State of California. (Docket No. 1.) Instead of paying the filing fee, Plaintiff filed an application to proceed in forma pauperis ("IFP"). (Docket No. 2.) Plaintiff also filed a request for appointment of counsel. (Docket No. 3.) For the reasons set forth below, the Court DENIES both Plaintiffs IFP application and request for appointment of counsel.

         A. IFP Application

         All parties instituting any civil action in a district court must pay a filing fee. 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).

         Under 28 U.S.C. § 1915(a)(1),

[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding ... without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.

         Plaintiff receives $2, 600.00 in income per month, which consists of his self-employment income ($1, 700.00) and public assistance ($900.00). (Docket No. 2 at ¶¶ 1-2.) He pays for rent, utilities, food and other monthly expenses amounting to approximately $3, 298.00 per month. (Id. at ¶ 8.) Although Defendant reports that his expenses exceed his income, the information provided in his affidavit does not reflect an inability to pay the fee to pursue the action. Therefore, the IFP application is DENIED.

         B. Request for Appointment of Counsel

         Courts have discretion to appoint counsel for indigent civil litigants upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981). "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, 935 F.2d at 1017 (9th Cir. 1991) (internal citations omitted); see also Bradshaw, 662 F.2d at 1318. "Neither of these factors is dispositive and both must be viewed together before reaching a decision." Terrell, 935 F.2d at 1017 (internal citations omitted).

         At this time, the Court cannot say there is any likelihood of success on the merits. Plaintiffs Complaint essentially seeks a declaration that California Family Code section 3030 ("Section 3030") violates parental and due process rights under the Fourteenth Amendment. (See generally Docket No. 1, Complaint.) Section 3030 generally prohibits the placing of a child into the custody of a person who is required to be registered as a sex offender under California Penal Code section 290, due to a criminal conviction of certain crimes involving a minor victim. Cal. Fam. Code § 3030. Plaintiff asserts that because he "cannot find a case in which this law would be reasonable, " he "requests [this Court] analyze and confirm." (Compl. at p. 1.) However, Plaintiff has not alleged facts to demonstrate he has standing to bring such a claim. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (a plaintiff invoking federal jurisdiction bears the burden of establishing the three elements of standing: 1) that the plaintiff has suffered an "injury in fact"; 2) that there is a causal connection between the plaintiffs injury and the conduct complained of traceable to the defendant; and 3) that is likely, i.e. not merely speculative, that the plaintiffs injury will be "redressed by a favorable decision") (internal citations omitted). As a result, it is not clear the Court has jurisdiction to hear his claim.

         Moreover, Plaintiff fails to demonstrate an inability to represent himself beyond the ordinary burdens encountered by plaintiffs representing themselves pro se, or that he has made a good faith effort to obtain counsel to represent him. See Garcia v. Smith, No. 10-cv-l 187, 2012 WL 2499003, at *4 (S.D. Cal. June 27, 2012) ("Merely alleging indigence is insufficient to entitle him to appointed counsel; he must also demonstrate that he made a good faith effort, but was unable, to obtain counsel."). Therefore, the Court finds that the exceptional circumstances required for the appointment of counsel are not present. Plaintiffs Motion is DENIED.

         CONCLUSION

         Plaintiffs IFP application and request for appointment of counsel are DENIED. Plaintiffs Complaint is DISMISSED without prejudice and may be re-opened if Plaintiff pays the required filing ...


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