“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 3 are not limited to prisoners.”
How later courts described this case
- “[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 3 are not limited to prisoners.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 MARCELLA RODRIGUEZ, Case No.: 19-CV-2164-JLS (BLM)
11 Plaintiff,
ORDER: (1) GRANTING MOTION
12 v. TO PROCEED IN FORMA
PAUPERIS; (2) DENYING MOTION
13 ASSOCIATED TECHNICAL
TO APPOINT COUNSEL; AND
14 COLLEGE, (3) DISMISSING COMPLAINT
Defendant.
15
(ECF Nos. 2, 3)
16
17
18 Presently before the Court is Plaintiff Marcella Rodriguez’s Motion to Proceed In
19 Forma Pauperis (“IFP”) (ECF No. 2). Also before the Court is Plaintiff’s Motion to
20 Appoint Counsel (ECF No. 3). The Court addresses each motion and the sufficiency of
21 the Complaint below.
22 I. Motion to Proceed IFP
23 All parties instituting any civil action, suit, or proceeding in a district court of the
24 United States, except an application for writ of habeas corpus, must pay a filing fee of
25 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to
26 prepay the entire fee only if the party is granted leave to proceed in forma pauperis pursuant
27 to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A
28 federal court may authorize the commencement of an action without the prepayment of
1 fees if the party submits an affidavit, including a statement of assets, showing that the party
2 is unable to pay the required filing fee. 28 U.S.C. § 1915(a).
3 Plaintiff has filed an affidavit indicating that, as of November 2019, she received
4 $550.00 from public assistance monthly and was unemployed. ECF No. 2 at 1–2. Plaintiff
5 had negative $5.70 in her bank accounts. Id. at 2. And Plaintiff indicates that her monthly
6 expenses total $415.00. Id. at 4–5. Given these facts, the Court concludes that Plaintiff is
7 unable to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiff’s
8 Motion to Proceed IFP.
9 II. Motion to Appoint Counsel
10 Plaintiff also requests that the Court appoint her counsel in this matter. See ECF No.
11 3. There is no constitutional right to counsel in a civil case. See Lassiter v. Dept. of Soc.
12 Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th
13 Cir. 2004). A district court may at its discretion appoint counsel if “exceptional
14 circumstances” exist. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991). Exceptional
15 circumstances exist where there is cumulative showing of both a likelihood of success on
16 the merits and a demonstrated inability of the pro se litigant to articulate her claims
17 considering their legal complexity. Id.
18 Here, nothing in the record at this stage of the litigation demands that the Court
19 exercise its limited discretion to request that an attorney represent Plaintiff pro bono. For
20 the reasons discussed below, Plaintiff has yet to show she is likely to succeed on the merits
21 of her claims. See infra Section III. Further, nothing to this point indicates Plaintiff is
22 incapable of articulating the facts and circumstances relevant to her claims, which are
23 typical and not legally “complex.” See Agyeman, 390 F.3d at 1103. Therefore, the Court
24 DENIES Plaintiff’s Motion for Appointment of Counsel.
25 III. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
26 Notwithstanding IFP status, the Court must screen every civil action brought
27 pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds “frivolous or malicious,”
28 “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a
1 defendant who is immune from relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v.
2 Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B)
3 are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en
4 banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires a district court to
5 dismiss an in forma pauperis complaint that fails to state a claim”).
6 “The standard for determining whether a plaintiff has failed to state a claim upon
7 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
8 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
9 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain sufficient
10 factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
11 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed
12 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of
13 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
14 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). The “mere possibility of
15 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short
16 of meeting this plausibility standard. Id.
17 The Court finds Plaintiff has failed to state a plausible claim for relief. According
18 to Plaintiff’s civil cover sheet, she brings one cause of action under the Americans with
19 Disabilities Act. To bring a claim under the ADA, an individual must show: “(1) [s]he is
20 a qualified individual with a disability; (2) [s]he was either excluded from participation in
21 or denied the benefits of a public entity’s services, programs or activities, or was otherwise
22 discriminated against by the public entity; and (3) such exclusion, denial of benefits, or
23 discrimination was by reason of h[er] disability.” Weinreich v. L.A. County Metro. Transp.
24 Auth., 114 F.3d 976, 978 (9th Cir. 1994) (emphasis omitted).
25 To establish a qualified disability under the ADA, a plaintiff must show “(A) a
26 physical or mental impairment that substantially limits one or more of the major life
27 activities of such individual; (B) a record of such an impairment; or (C) being regarded as
28 having such an impairment.” 42 U.S.C. § 12102(1); see also 28 C.F.R. § 35.104. Here,
] || Plaintiff fails to establish she has a qualified disability. Plaintiff fails to allege any specific
2 ||mental or physical impairment that would allow her to bring a claim under the ADA.
3 || Therefore, Plaintiff’s claim for violation of the ADA fails to state a claim.
4 In addition to failing to allege a qualifying disability, Plaintiff fails to allege what, if
5 ||any, reasonable accommodation she was denied because of her disability. □□□□□□□□□□□
6 [Plaintiff] bears the burden of establishing an ADA violation, she must establish the
7 ||existence of specific reasonable accommodations that [Defendant] failed to provide.”
8 || Memmer v. Marin Cty. Courts, 169 F.3d 630, 633 (9th Cir. 1999). By failing to state any
9 || specific reasonable accommodation, Plaintiff has failed to meet her burden. Moreover,
10 ||“because [Plaintiff]’s suit is for monetary damages, she must show intentional
11 |/discrimination.” /d. (emphasis in original). The facts, as alleged, fall short of plausibly
12 || stating a claim of intentional discrimination.
13 For these reasons, the Court finds Plaintiff fails to state a claim on which the Court
14 || may grant relief. Accordingly, the Court DISMISSES Plaintiff's Complaint.
15 Conclusion
16 Based on the foregoing, the Court GRANTS Plaintiff’s Motion to Proceed IFP,
17 || (ECF No. 2) and DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 3). The Court
18 ||hereby DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint sua sponte for
19 || failure to state a claim upon which relief can be granted. Plaintiff MAY FILE an amended
20 ||complaint within thirty (30) days of the date on which this Order is electronically docketed.
21 || Should Plaintiff fail to file an amended complaint within the time provided, the Court may
22 || enter a final order dismissing this civil action with prejudice.
23 IT IS SO ORDERED.
24 Dated: April 23, 2020 . tt f te
25 on. Janis L. Sammartino
6 United States District Judge
27
28