“[a] district 9 court should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 10 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 11 could not be cured by amendment’”
How later courts described this case
- “[a] district 9 court should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 10 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 11 could not be cured by amendment’”
- “Lif all that 3 || was required to establish successfully the complexity of the relevant issues was a 4 ||demonstration of the need for development of further facts, practically all cases would 5 ||involve complex legal issues”
- “an amended pleading supersedes the original’
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 LIZBETH PERALTA, Case No.: 3:23-cv-00022-RBM-BGS
11 Plaintiff,
ORDER:
12 v.
(1) GRANTING PLAINTIFF’S
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MOTION TO PROCEED IN FORMA
14 MASSACHUSETTS STATE POLICE, et PAUPERIS; AND
al.,
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Defendants. (2) DISMISSING COMPLAINT FOR
16 FAILURE TO STATE A CLAIM;
AND
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18 (2) DENYING PLAINTIFF’S
REQUEST FOR APPOINTMENT OF
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COUNSEL.
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[Docs. 2, 3]
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22 I. INTRODUCTION
23 On January 6, 2023, Plaintiff Lizbeth Peralta (“Plaintiff”) filed an action against the
24 Massachusetts State Police, TAP Airlines, Massachusetts General Hospital, and Francis
25 Ford Coppola (“Defendants”). (Doc. 1.) Plaintiff alleges various civil rights violations
26 and asserts that Defendants conspired to “harm Plaintiff [] sexually, economically, socially
27 psychologically, and physically.” (Id. at 10.) Also on January 6, 2023, Plaintiff filed a
28 Motion to Proceed In Forma Pauperis (“IFP”) (“IFP Motion”) (Doc. 2) and a Request for
1 Appointment of Counsel (Doc. 3). For the reasons discussed below, the Court GRANTS
2 Plaintiff’s IFP Motion, DISMISSES the Complaint without prejudice, and DENIES
3 Plaintiff’s Request for Appointment of Counsel.
4 II. DISCUSSION
5 A. Motion to Proceed In Forma Pauperis
6 All parties instituting any civil action, suit or proceeding in a district court of the
7 United States, except an application for writ of habeas corpus, must pay a filing fee of
8 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the
9 entire filing fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a).
10 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Under 28 U.S.C. § 1915,
11 a litigant who, because of indigency, is unable to pay the required fees or security to
12 commence a legal action may petition the court to proceed without making such payment.
13 28 U.S.C. § 1915(a)(1). “An affidavit in support of an IFP application is sufficient where
14 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.”
15 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). The facts of an affidavit of
16 poverty must be stated “with some particularity, definiteness and certainty.” Id. (quoting
17 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). The determination of
18 indigency falls within the district court’s discretion. Cal. Men’s Colony v. Rowland, 939
19 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993).
20 In support of her IFP Motion, Plaintiff submitted an affidavit indicating that her
21 average monthly income over the past twelve months consists of $900 from disability
22 payments. (Doc. 2 at 2.) Plaintiff also states she has $45.00 in a Citi Bank checking
23 account. (Id.) Plaintiff claims to have no spouse and no other assets. (Id. at 2–3.)
24 Plaintiff’s monthly expenses for rent, home maintenance, food, clothing, laundry,
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27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP,
must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial
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1 transportation, and recreational costs total approximately $1,080.00. (Id. at 4–5.) Plaintiff
2 is currently unemployed and does not expect any major changes to her monthly income or
3 expenses during the next twelve months. (Id. at 5.)
4 After considering Plaintiff’s IFP Motion, the Court determines that Plaintiff cannot
5 afford to pay the filing fee in this case and is eligible to proceed IFP pursuant to 28 U.S.C.
6 § 1915(a). Accordingly, Plaintiff’s IFP Motion is GRANTED.
7 B. Screening Pursuant to 28 U.S.C. § 1915(e)(2)
8 Before service on defendants, all in forma pauperis complaints must be screened to
9 ensure that they are not frivolous or malicious, that they state a claim on which relief may
10 be granted, and that they do not seek monetary relief against an immune defendant. 28
11 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). The standard
12 for adequately stating a claim is the same as the one that is applied under Rule 12(b)(6) of
13 the Federal Rules of Civil Procedure. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
14 2012). A complaint “must contain sufficient factual matter, accepted as true, to ‘state a
15 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
16 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
17 plausible “when the plaintiff pleads factual content that allows the court to draw the
18 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
19 U.S. at 678. Detailed factual allegations are not required, but “[t]hreadbare recitals of the
20 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
21 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
22 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
23 experience and common sense.” Id. Moreover, a court may dismiss a complaint factually
24 frivolous if the facts alleged are “clearly baseless,” a category encompassing allegations
25 that are fanciful, fantastic, and delusional. Denton v. Hernandez, 504 U.S. 25, 32–33
26 (1992) (citing Neitzke v. Williams, 490 U.S. 319, 325, 327–28 (1989)).
27 Here, Plaintiff alleges that she arrived at the airport in Boston, Massachusetts to
28 board a flight to Rome, Italy and noticed a group of individuals “appearing to be [part] of
1 some type of ‘cult’ of Francis Coppola or some other type of famous movie director, a
2 group who has severely targeted and sexually abused Plaintiff [] in the past upon her break
3 up with one of their members.” (Doc. 1 at 3.) Plaintiff goes on to explain this cult
4 “enslaved Plaintiff in the past by way of some type of ‘SIMS’ pharmaceutical which allows
5 another to synchronize with another like the movie Avatar.” (Id.) She states these “abusive
6 actions . . . including deforming her vagina to have a gaping hole is the main reason why
7 Plaintiff had been looking to escape to Rome, Italy.” (Id.) Plaintiff expressed that she was
8 concerned about boarding a plane with the cult members to an airline representative and
9 that the Massachusetts State Police eventually got involved. Plaintiff alleges that the
10 actions of the police also exhibited cult-like behavior. (Id. at 7.) She asserts that she was
11 then transported to Massachusetts General Hospital where she was kept against her will for
12 forty-two days and that a “judge with no real evidence had then held that Plaintiff [] will
13 be forced on medicine against her will and that she will be committed/detained at the
14 hospital for a period of 6 months.” (Id. at 8.)
15 In reviewing the allegations, the Court finds Plaintiff’s claims to be factually
16 frivolous. See Brown v. Butler, No. D075348, 2020 WL 2530086, at *6 (Cal. Ct. App.
17 May 19, 2020), as modified on denial of reh’g (June 10, 2020) (finding the notion that the
18 Mormon Church and its codefendants “perpetrated a wide-ranging scheme of violence”
19 including intimidation, manipulation of the judicial system, ritualistic curses, and sleep
20 deprivation, among other things, fails as the allegations are “so frivolous to the point of
21 absurdity”); see also Topete v. Chambliss, No. 3:10-CV-00359-ECR, 2010 WL 4553453,
22 at *1 (D. Nev. Nov. 2, 2010) (claims may be dismissed if they are “based on fanciful factual
23 allegations (e.g. fantastic or delusional scenarios)”); Yacoub v. United States, 2007 WL
24 2745386 (W.D. Wash. Sept. 20, 2007) (dismissing as frivolous pro se complaint alleging
25 defendants “used toxic chemicals, telepathy, color coding, astral bodies, electromagnetic
26 waves, and other methods to control his mind and bodily functions”); Charles v. United
27 States, No. CV 13-1369-PHX-MHB, 2013 WL 3894996, at *2 (D. Ariz. July 29, 2013)
28 (finding frivolous plaintiff’s claims that the government used him as a human guinea pig
1 to test audio hypnosis, memory manipulation, and mind reading). The facts as alleged in
2 this action rise to the level of “fanciful, fantastic, and delusional.” Denton, 504 U.S. at 25–
3 26, 33 (quoting Neitzke, 490 U.S. at 328) (internal quotations omitted).
4 Accordingly, Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE for
5 failure to state a claim upon which relief may be granted. See 28 U.S.C. §
6 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. In light of her pro se status, the Court grants
7 Plaintiff leave to amend her complaint in order to attempt to address the pleading
8 deficiencies. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“[a] district
9 court should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.
10 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint
11 could not be cured by amendment’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
12 Cir. 2012)).
13 C. Request for Appointment of Counsel
14 On January 6, 2023, Plaintiff filed a Request for Appointment of Counsel. (Doc. 3.)
15 In the Request for Appointment of Counsel, Plaintiff represents that she does not have the
16 financial means to retain counsel. (Id. at 4–6.) Moreover, Plaintiff states “[a]lthough I do
17 hold a Juris [D]octorate from the University of San Francisco School of Law, I have never
18 practiced nor have any real experience working in a legal setting.” (Id. at 2.) “[A]n
19 indigent’s right to appointed counsel . . . exist[s] only where the litigant may lose his
20 physical liberty if he loses the litigation.” Lassiter v. Dep’t. of Soc. Servs., 452 U.S. 18, 25
21 (1981). However, Congress has authorized courts to appoint counsel for indigent litigants
22 under “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d
23 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation
24 of both ‘the likelihood of success on the merits and the ability of the petitioner to articulate
25 his claims pro se in light of the complexity of the legal issues involved.’” Terrell, 935 F.2d
26 at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
27 In this case, there is no basis to support a finding of exceptional circumstances such
28 that appointment of counsel would be warranted. Plaintiff has not demonstrated a
1 || likelihood of success on the merits nor shown that the complexity of the issues involved is
2 sufficient to require designation of counsel. See Wilborn, 789 F.2d at 1331 (“Lif all that
3 || was required to establish successfully the complexity of the relevant issues was a
4 ||demonstration of the need for development of further facts, practically all cases would
5 ||involve complex legal issues”). Moreover, there is no basis for the Court to conclude
6 || Plaintiff lacks to ability to articulate and prosecute her claims pro se. Therefore, □□□□□□□□□□ □
7 || Request for Appointment of Counsel is DENIED WITHOUT PREJUDICE.
8 HI. CONCLUSION
9 For the reasons above, the Court:
10 1. GRANTS Plaintiff's IFP Motion (Doc 2).
11 2. DISMISSES Plaintiff's complaint for failure to state a claim upon which
12 ||relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and GRANTS Plaintiff
13 || forty-five (45) days leave from the date of this Order in which to file an amended complaint
14 || which cures all the deficiencies of pleading noted. Plaintiff's amended complaint must be
15 ||complete by itself without reference to his original pleading. Defendants not named and
16 claim not re-alleged in his amended complaint will be considered waived. See Civ.
17 ||Local R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th
18 || Cir. 1989) (“an amended pleading supersedes the original’); Lacey v. Maricopa Cnty., 693
19 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are
20 || not re-alleged in an amended pleading may be “considered waived if not repled”).
21 3. DENIES WITHOUT PREJUDICE Plaintiff's Request for Appointment of
22 ||Counsel (Doc 3).
23 IT IS SO ORDERED.
24 ||Dated: January 12, 2023
6 HON. RUTH BERMUSEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
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