United States District Court, S.D. California
ORDER (1) DENYING MOTION TO PROCEED IN FORMA
PAUPERIS; 2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A
CLAIM; (3) DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF
NOS. 2, 3)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff Rudolf Shteynberg's Motion
to Proceed In Forma Pauperis (“IFP”),
(“IFP Mot., ” ECF No. 2), and Motion for
Appointment of Counsel, (“Mot. for Counsel, ” ECF
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). An action may proceed
despite a plaintiff's failure to prepay the entire fee
only if he is granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a). See
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
A federal court may authorize the commencement of an action
without the prepayment of fees if the party submits an
affidavit, including a statement of assets, showing that he
is unable to pay the required filing fee. 28 U.S.C. §
present case, Plaintiff has submitted an affidavit indicating
his total monthly income is $937.36 (received through
disability payments and “annuity payments”), he
is currently unemployed, and has no assets. (IFP Mot.
2-4.) Plaintiff states his monthly expenses are
approximately $470. These expenses comprise of $70 for a
2-day “hotel stay, ” approximately $200 for
“small business development” and approximately
$200 for “taxi, rental hotel stay and others.”
(Id. at 5-6.) It appears the “hotel
stay” is double counted, and Plaintiff lists no other
expenses. Plaintiff also states he is going through a
divorce, but lists nothing regarding his spouse's
employment history or income. (Id. at 3- 6.) At this
time, it is unclear if Plaintiff is able to pay the requisite
fees and costs. Accordingly, the Court
DENIES Plaintiff's Motion to Proceed
IFP. As will be discussed below, the Court has previously
granted Plaintiff's Motion to Proceed IFP in his related
case, No. 17-CV-1098-JLS-KSC.
Pursuant to 28 U.S.C. §§ 1915(e)(2) &
though it denies Plaintiff's Motion, the Court finds it
necessary to screen Plaintiff's Complaint. The Court must
screen every civil action brought pursuant to 28 U.S.C.
§ 1915(a) and dismiss any case it finds “frivolous
or malicious, ” “fails to state a claim on which
relief may be granted, ” or “seeks monetary
relief against a defendant who is immune from relief.”
28 U.S.C. § 1915(e)(2)(B); see also 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 prisoner.”); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C.
§ 1915(e) “not only permits but requires a
district court to dismiss an in forma pauperis complaint that
fails to state a claim”).
amended by the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(e)(2) mandates
that the court reviewing an action filed pursuant to the IFP
provisions of § 1915 make and rule on its own motion to
dismiss before directing the Marshal to effect service
pursuant to Federal Rule of Civil Procedure 4(c)(3).
See Fed. R. Civ. P. 4(c)(3); Navarette v.
Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL
139925, at *1 (S.D. Cal. Jan. 9, 2013).
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 Atl. Corp. v. Twombly, 550 U.S. 554, 555
(2007)). “[D]etermining whether a complaint states a
plausible claim is context-specific, requiring the reviewing
court to draw on its experience and common sense.”
Iqbal, 556 U.S. at 663-64 (citing Twombly,
550 U.S. at 556).
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement of relief.”
Iqbal, 556 U.S. at 679. “[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.”
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000);
see also Andrews v. King, 393 F.3d 1113, 1121 (9th
Cir. 2005); Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998) (“The language of §
1915(e)(2)(B)(ii) parallels the language of Federal Rule of
Civil Procedure 12(b)(6).”).
factual allegations are accepted as true, legal conclusions
are not.” Hoagland v. Astrue, No.
1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28,
2012) (citing Iqbal, 556 U.S. at 678). Courts cannot
accept legal conclusions set forth in a complaint if the
plaintiff has not supported her contentions with facts.
Id. (citing Iqbal, 556 U.S. at 679).
present case, Plaintiff's Complaint appears to be a
reiteration of his request for counsel. The entire Complaint
states: “This is to notify Judge appointed and judicial
authority that Plaintiff is in position to continue
[illegible] volunteers Program and Counsel to be appointed as
the Plaintiff who is acting on his own and have no
[knowledge] and legal capacity to pro[c]eed on his own.
Limited [knowledge] of legal terms would not [illegible] him
to communicate in legal manners or proceed on his own.
Previous request from Judge Sammartino to obtain names of the
Defendants Parties was not released in full by San Diego
County Sheriffs Department and it was discussion in the
correctional facility on release of such information.”
(ECF No. 1, at 3.)
to Plaintiff's Complaint is a Complaint Form for the San
Diego County Sheriff's Department, (ECF No. 1-20). In
this Complaint Form, Plaintiff requests the “release of
all sheriffs officers and names of Judges (including medical
team / doctors, nurses, and employees) working at the date/
time of [illegible] in custody. Date and time of my
incarceration.” (Id.) No other information is
has filed a complaint in a related case before the Court,
(see Case No. 17-CV-1098-JLS-KSC). The issue in that
case arises from alleged personal injury against Plaintiff by
the San Diego County Sheriff's Office. (See ECF
No. 1.) In that case, the Court granted
Plaintiff's motion to proceed IFP on June 30, 2017, but
dismissed the Complaint pursuant to mandatory screening under
28 U.S.C. §§ 1915(e)(2) & 1915A(b),
(see ECF No. 6.) The Court granted Plaintiff thirty
days to refile his complaint. Instead of filing an amended
complaint, Plaintiff filed various motions (motion to
expedite, motion to appoint counsel, and motion for recusal),
which the ...