United States District Court, S.D. California
ORDER: (1) DENYING IN FORMA PAUPERIS APPLICATION; (2)
DENYING REQUEST FOR APPOINTMENT OF COUNSEL
Roger T Benitez United States District Court Judge
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
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).
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.
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.
Request for Appointment of Counsel
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
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.
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.
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