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Shteynberg v. Sheriffs Department

United States District Court, S.D. California

November 16, 2017

RUDOLF SHTEYNBERG, Plaintiff,
v.
SHERIFFS DEPARTMENT, Defendant.

          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)

          HON. JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE

         Presently 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 No. 3).

         IFP MOTION

         All 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. § 1915(a).

         In the 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.)[1] 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.

         Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

         Even 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”).

         As 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).

         All 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).

         “When 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).”).

         “While 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).

         In the 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.)

         Attached 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 provided.

         Plaintiff 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.)[2] 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 ...


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