The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MELCHOR LIMPIN, Case No.: 23-cv-037-JES-JLB
12 Plaintiff,
ORDER GRANTING IFP,
13 v. DISMISSING COMPLAINT &
DENYING MOTION TO APPOINT
14 STATE OF CALIFORNIA, et al.,
COUNSEL
15 Defendants.
[ECF Nos. 2 and 3]
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On January 9, 2023, Plaintiff, proceeding pro se, filed a complaint alleging four
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causes of action against numerous defendants. Plaintiff also filed a Motion for Leave to
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proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) and a Motion to
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Appoint Counsel. ECF Nos. 2, 3. For the reasons stated below, the Court grants
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Plaintiff’s motion to proceed IFP, dismisses his complaint without leave to amend and
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denies his motion to appoint counsel as moot.
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I. Motion to Proceed IFP
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The Court first addresses Plaintiffs’ motion to proceed IFP. ECF No. 2. Typically,
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parties instituting a civil action in a United States District Court must pay a filing fee of
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1 $402. But if granted the right to proceed IFP, a plaintiff can proceed without paying the
2 fee. Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). It is well-settled that a party
3 need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours &
4 Co., 335 U.S. 331, 339-40 (1948). The determination of indigency falls within the district
5 court’s discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991)
6 (noting “Section 1915 typically requires the reviewing court to exercise its sound
7 discretion in determining whether the affiant has satisfied the statute’s requirement of
8 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). “An affidavit in support of an
9 IFP application is sufficient where it alleges that the affiant cannot pay the court costs
10 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
11 Cir. 2015) (citing Adkins, 335 U.S. at 339).
12 Here, Plaintiff states that he receives $1,451 a month from social security
13 disability, has $23 in cash, $177.54 in his checking account and has monthly expenses of
14 $1,382.70. The Court finds that plaintiff has sufficiently shown an inability to pay the
15 filing fee. Therefore, the Court GRANTS Plaintiff’s request to proceed IFP (ECF No. 2).
16 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)
17 A. Legal Standard
18 A complaint filed by a plaintiff proceeding IFP is subject to screening under 28
19 U.S.C. § 1915(e)(2) and the court is required to review the complaint and dismiss the
20 action if it: “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
21 granted; or (iii) seeks monetary relief from a defendant who is immune from such relief.”
22 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-1127 (9th Cir. 2000).
23 “The standard for determining whether a plaintiff has failed to state a claim upon which
24 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
25 Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
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1 In addition to the $350 statutory fee, civil litigants must pay an administrative fee of $52. See 28
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1 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2 2012). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter . . . to
3 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
4 (2009) (internal quotation marks omitted). While detailed factual allegations are not
5 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
6 conclusory statements, do not suffice” to state a claim. Id. “A claim has facial plausibility
7 when the plaintiff pleads factual content that allows the court to draw the reasonable
8 inference that the defendant is liable for the misconduct alleged.” Id. To pass screening,
9 all complaints must contain a “short and plain statement of the claim showing that the
10 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
11 B. Background
12 Plaintiff sues forty-two Defendants, including the State of California, and various
13 elected officials in their individual capacities. Plaintiff alleges violations of the Equal
14 Protection Clause of the Fourteenth Amendment, Racketeer Influenced and Corrupt
15 Organizations (RICO) under 18 U.S.C. §§ 1961-1964, civil rights violations under 42
16 U.S.C. § 1983 and conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3).
17 Each of Plaintiff’s causes of action derive from the implementation of California Senate
18 Bill 88 (“SB-88”) and Senate Bill 139 (“SB-139”).
19 SB-88 and SB-139 were enacted on February 23, 2021, and July 12, 2021,
20 respectively. SB-88 modified California Welfare & Institutions Code § 8150 and
21 provided for a one-time stimulus payment to low-income Californians impacted by the
22 COVID-19 emergency. S.B. 88, 2021-2022 Reg. Sess. (Cal 2021); S.B. 139, 2021-2022
23 Reg. Sess. (Cal 2021); Cal. Welf. & Inst. § 8150 (West 2023). The bill created the
24 Golden State Stimulus Emergency Fund, which provided for payments in the amount of
25 either $600 or $1,200 to a “qualified recipient.” Id. SB-88 defined a “qualified recipient”
26 as an individual who received the earned income tax credit for the 2020 tax year by
27 November 15, 2021, or an individual who satisfied all of the following: filed a California
28 income tax return on or before October 15, 2021, included their federal individual
1 taxpayer identification number, and had an adjusted gross income of $75,000 or less. S.B.
2 88, supra; Cal. Welf. & Inst. § 8150, supra. If an individual received the earned income
3 tax credit and satisfied each of the following listed conditions above, they received a
4 $1,200 stimulus payment. Id. If an individual only satisfied one of the above conditions,
5 they received a $600 stimulus payment. Id. SB-88 explicitly provided that the tax credits
6 would be available to undocumented persons as long as they met the requirements
7 provided above. S.B. 88, supra.
8 SB-139 provided for an additional one-time stimulus payment to low-income
9 Californians but redefined the definition of “qualified recipient” to include a specified
10 individual who received an earned income tax credit on an individual tax return filed by
11 February 15, 2022. S.B. 139, supra; Cal. Welf. & Inst. § 8150(b)(B)(3)(B)(i) (West
12 2023). Plaintiff takes issue with undocumented persons being eligible to receive a
13 stimulus payment under the Golden State Stimulus. Plaintiff files these causes of action
14 as a citizen and taxpayer of the State of California.
15 C. Discussion
16 1. Plaintiff Lacks Article III Standing to File a Cause of Action
17 State taxpayers have no standing under Article III to challenge state tax or
18 spending decisions simply by virtue of their status as a taxpayer. Arakaki v. Lingle, 477
19 F.3d 1048, 1063 (9th Cir 2007). The Court has consistently denied both federal and state
20 taxpayers standing under Article III to object to a particular expenditure of funds simply
21 because they are taxpayers. Id. at 1064. To establish Article III standing, “‘the [taxpayer]
22 must be able to show ... that he has sustained ... some direct injury ... and not merely that
23 he suffers in some indefinite way in common with people generally.’” Doremus v. Board
24 of Ed. Of Borough of Hawthorne, 342 U.S. 429, 433-434 (quoting Commonwealth of
25 Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); See DaimlerChrysler Corp. v. Cuno,
26 547 U.S. 332, 345 (2006). State policymakers, no less than their federal counterparts,
27 retain broad discretion to make “policy decisions” concerning state spending “in different
28 ways ... depending on their perceptions of wise state fiscal policy and myriad other
1 circumstances.” ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989); See DaimlerChrysler
2 Corp., supra, 547 U.S. at 346. Indeed, because state budgets frequently contain an array
3 of tax and spending provisions, any number of which may be challenged on a variety of
4 bases, affording state taxpayers standing to press such challenges simply because their
5 tax burden gives them an interest in the state treasury would interpose the federal courts
6 as “‘virtually continuing monitors of the wisdom and soundness' ” of state fiscal
7 administration, contrary to the more modest role Article III envisions for federal courts.
8 Laird v. Tatum, 408 U.S. 1, 15 (1972).
9 Plaintiff’s first cause of action seeks injunctive relief and alleges that SB-88 and
10 SB-139 and “its corresponding public welfare laws (WIC § 8150 and WIC § 8150.2) …
11 [are] class-based discrimination against the indigent under the Equal Protection Clause of
12 the Fourteenth Amendment.” (Compl. ¶ 15). Plaintiff alleges that an undocumented
13 person with income less than $30,000 would receive a stimulus payment in the amount of
14 $1,200 because they have a federal individual taxpayer identification number, whereas a
15 California citizen who has the same income of less than $30,000 would only receive a
16 $600 stimulus payment because they have a social security number. (Compl. ¶ 4).
17 Plaintiff alleges the public welfare laws are money laundering and that Governor
18 Newsom devised the Golden State Stimulus program as a “scheme … to reward
19 undocumented persons under his employ” at one of his several vineyards. (Compl. ¶¶ 32-
20 34, 54).
21 It is unclear from the Complaint, but the Court assumes that the first cause of
22 action is filed against the State of California and each of the government officials listed
23 as defendants. Plaintiff’s entire complaint makes conclusory statements. Throughout his
24 complaint, Plaintiff fails to allege a direct injury and not merely that he suffers similarly
25 to other taxpayers generally under the requirements of SB-88 and SB-139. Not receiving
26 a $1,200 stimulus payment is not a direct injury. Under the requirements of SB-88 and
27 SB-139, many taxpayers do not receive a stimulus payment at all, including those with an
28 adjusted gross income over $75,000.
1 Therefore, Plaintiff lacks Article III standing and all claims are dismissed without
2 leave to amend.
3 2. SB-88 and SB-139 Do Not Violate the Equal Protection Clause of the
4 Fourteenth Amendment
5 Even if Plaintiff were to establish Article III standing, SB-88 and SB-139 do not
6 violate the equal protection clause of the Fourteenth Amendment. In his first cause of
7 action, Plaintiff seeks injunctive relief and alleges that SB-88 and SB-139 “intentionally
8 discriminates against a suspect class who are indigent” and is subject to strict scrutiny
9 review by the court. (Compl. ¶¶ 19-22). Indigent persons are not a protected, or suspect,
10 class for purposes of equal protection: “poverty, standing alone [,] is not a suspect
11 classification.” Harris v. McRae, 448 U.S. 297, 323 (1980). The Supreme Court has
12 “never held that financial need alone identifies a suspect class for purposes of equal
13 protection analysis.” Maher v. Roe, 432 U.S. 464, 471 (1977).
14 “Generally, legislation is presumed to pass constitutional muster and will be
15 sustained if the classification drawn by the statute or ordinance is rationally related to a
16 legitimate state interest. If the classification disadvantages a ‘suspect class’ or impinges a
17 ‘fundamental right,’ the ordinance is subject to strict scrutiny.” Nunez by Nunez v. City of
18 San Diego, 114 F.3d 935, 944 (9th Cir. 1997) (citing City of Cleburne, Texas v. Cleburne
19 Living Center, 473 U.S. 432, 439-440 (1985)). However, if the classification does not
20 target a suspect class or impinge upon a fundamental right, the ordinance is subject to
21 rational review. Under this standard, “the Equal Protection Clause is satisfied so long as
22 there is a plausible policy reason for the classification, … the legislative facts on which
23 the classification is apparently based rationally may have been considered to be true by
24 the governmental decisionmaker, … and the relationship of the classification to its goal is
25 not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger v. Hahn,
26 505 U.S. 1, 11 (1992). This standard is especially deferential in the context of
27 classifications made by complex tax laws. Id. “[I]n structuring internal taxation schemes
28 ‘the States have large leeway in making classifications and drawing lines which in their
1 judgment produce reasonable systems of taxation.’” Id. (citing Williams v. Vermont, 472
2 U.S. 14, 22 (1985), quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359
3 (1973)). A classification will not fail rational-basis review even if “it is not made with
4 mathematical nicety or because in practice it results in some inequality.” United States v.
5 Pickard, 100 F. Supp. 3d 981, 1005 (E.D. Cal. 2015) (citing Heller v. Doe by Doe, 509
6 U.S. 312, 319 (1993)).
7 SB-88 and SB-139 both provide for “[economic] relief to low-income Californians
8 impacted by the COVID-19 emergency.” S.B. 88, supra; S.B. 139, supra. That policy
9 reason is plausible and rational. It does not render the legislation arbitrary or irrational.
10 For those reasons, SB-88 and SB-139 survive rational review and do not violate the
11 Equal Protection Clause of the Fourteenth Amendment.
12 3. Defendants Have Immunity under the Eleventh Amendment
13 Plaintiff’s second, third and fourth cause of action seek to recover monetary
14 damages against the State of California and forty-one elected officials who acted in their
15 official capacities in enacting SB-88 and SB-139. Plaintiff seeks to bring this action
16 against the elected officials in their individual capacities, however, this entire suit is
17 based on the passage of SB-88 and SB-139, which was done in the official capacities of
18 each of the elected officials.
19 The Eleventh Amendment bars suits against a State or its agencies in federal court
20 for all types of relief, absent unequivocal consent by the state. Romano v. Bible, 169 F.3d
21 1182, 1185 (9th Cir.1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100, 104 S.Ct.
22 900, 79 L.Ed.2d 67 (1984)). The Eleventh Amendment’s jurisdictional bar applies
23 regardless of the nature of relief sought and extends to state instrumentalities and
24 agencies. Krainski v. Nevada ex rel. Bd. of Regents of the Nevada System of Higher
25 Educ., 616 F.3d 963, 967 (2010).
26 Eleventh Amendment immunity also shields state officials acting in their official
27 capacity. Id. at 967-968. A narrow exception exists “where the relief sought is
28 prospective in nature and is based on an ongoing violation of the plaintiff's federal
1 constitutional or statutory rights.” Central Reserve Life of N. Am. Ins. Co. v. Struve, 852
2 F.2d 1158, 1161 (9th Cir. 1988). State officials are entitled to qualified immunity from
3 suits for damages “insofar as their conduct does not violate clearly established statutory
4 or constitutional rights of which a reasonable person would have known.” Harlow v.
5 Fitzgerald, 457 U.S. 800, 818, (1982). “Determining whether officials are owed qualified
6 immunity involves two inquiries: (1) whether, taken in the light most favorable to the
7 party asserting the injury, the facts alleged show the officer's conduct violated a
8 constitutional right; and (2) if so, whether the right was clearly established in light of the
9 specific context of the case.” Krainski, supra, at 968. “For a constitutional right to be
10 clearly established, its contours must be sufficiently clear that a reasonable official would
11 understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739
12 (2002).
13 A suit against a state official in his or her official capacity is not a suit against the
14 official but rather is a suit against the official's office. Brandon v. Holt, 469 U.S. 464, 471
15 (1985). As such, it is no different from a suit against the State itself. Will v. Michigan
16 Dept. of State Police, 491 U.S. 58 (1989). See, e.g., Kentucky v. Graham, 473 U.S. 159,
17 165–166, (1985). Neither a State nor its officials acting in their official capacities are
18 “persons” under § 1983. Will, supra, 491 U.S. at 70-71.
19 Plaintiff may not recover monetary damages against the State of California or any
20 of the elected officials named as defendants for violations of the Equal Protection Clause
21 of the Fourteenth Amendment, RICO, civil rights violations under 42 U.S.C. § 1983 and
22 conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3). The Eleventh
23 Amendment bars such claims. Therefore, all claims against the defendants for monetary
24 damages based on federal constitutional equal protection will be dismissed with
25 prejudice.
26 Therefore, all claims against the State of California and the forty-one state officials
27 are all dismissed without leave to amend.
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l I. CONCLUSION
2 A pro se litigant must be given leave to amend his or her complaint to state a claim
3 || unless it is absolutely clear the deficiencies of the complaint cannot be cured by
4 ||amendment. See Lopez, supra, 203 F.3d at 1130. However, for the reasons stated above,
5 Court grants Plaintiffs’ Motion to Proceed IFP (ECF No. 2) and dismisses the
6 || Complaint with prejudice as no amendment will overcome the hurdles mentioned above.
7 || Accordingly, the Motion to Appoint Counsel (ECF No. 3) is denied as moot.
8 || IT IS SO ORDERED.
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10 Dated: May 2, 2023 wm Sin 4,
Honorable James E. Sunmons, Jr.
12 Unites States District Judge
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