“A party may be properly in a case if the allegations in the body of the complaint 7 make it plain that the party is intended as a defendant.” (cleaned up)
How later courts described this case
- “A party may be properly in a case if the allegations in the body of the complaint 7 make it plain that the party is intended as a defendant.” (cleaned up)
- holding that the relevant statute—28 U.S.C. § 1915—“does not 22 authorize the federal courts to make coercive appointments of counsel”
Written by the judges who cited it.
The opinion
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF CALIFORNIA
3 Ashely Mendez GUERRERO, Case No.: 23-cv-1518-AGS-DEB
4 Plaintiff, ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO
5 v.
PROCEED IN FORMA PAUPERIS
6 SDPD CARMEL VALLEY, (ECF 3) AND DENYING
PLAINTIFF’S MOTION TO
7 Defendant.
APPOINT COUNSEL (ECF 2)
8
9 Plaintiff Ashely Mendez Guerrero moves to proceed without paying the filing fee
10 and for appointed counsel. Guerrero qualifies to proceed without paying the fee, and her
11 complaint states a claim as to at least one cause of action. So, the Court grants Guerrero’s
12 motion to waive the filing fee but, because there is no right to appointed counsel in civil
13 cases, denies her motion for counsel.
14 MOTION TO PROCEED IN FORMA PAUPERIS
15 Typically, parties instituting a civil action in a United States district court must pay
16 filing fees of $402.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma
17 pauperis, a plaintiff can proceed without paying the fee. Rodriguez v. Cook, 169 F.3d 1176,
18 1177 (9th Cir. 1999).
19 Guerrero owns no assets and has a single account holding “$22.” (ECF 3, at 2.) She
20 had a job as a caretaker paying $3,000 a month, but she lost that job in April and has had
21 no income since. (Id.) Her monthly living expenses total $1,000. (Id. at 4.) The Court finds
22 that Guerrero has sufficiently shown an inability to pay the initial fees. See Blount v. Saul,
23
24
25
26
1 In addition to the $350 statutory fee, civil litigants must pay a $52 administrative
27 fee. See 28 U.S.C. § 1914(a); District Court Misc. Fee Schedule, § 14 (effective Dec. 1,
2020).
28
1 No. 21-CV-0679-BLM, 2021 WL 1561453, at *1 (S.D. Cal. Apr. 21, 2021) (“It is well-
2 settled that a party need not be completely destitute to proceed IFP.”).
3 28 U.S.C. § 1915(e) SCREENING
4 When reviewing an IFP motion, the court must screen the complaint and dismiss it
5 if it is “frivolous or malicious,” “fails to state a claim,” or seeks monetary relief from a
6 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d
7 1122, 1126‒27 (9th Cir. 2000). “The standard for determining whether a plaintiff has failed
8 to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as
9 the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison
10 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to
11 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
12 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). This standard
13 is a liberal one, particularly when the action has been filed pro se. See Estelle v. Gamble,
14 429 U.S. 97, 97 (1976). But even a “liberal interpretation . . . may not supply elements of
15 the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673
16 F.2d 266, 268 (9th Cir. 1982).
17 Guerrero alleges that she was “detained” by San Diego Police Department officers
18 for a psychological evaluation. (See ECF 1, at 6.) This detention apparently arose because
19 of domestic strife in her home, primarily with her mother and brother. (Id. at 2–4.) In any
20 event, Guerrero alleges that the police thought she was lying about her family’s abusive
21 behavior and that the officers in turn mistreated Guerrero. (Id. at 6.) She was held overnight
22 until she was seen by a “doctor” who “immediately released” her. (Id. at 6.)
23 It’s not entirely clear what claims she intends to bring, but she seeks, in addition to
24 a litany of unsupported requests, damages for “unreasonable seizure.” (See also id. at 7–8
25 (demanding damages and wide-ranging evidentiary seizures for “malicious prosecution,”
26 “Second Amendment infringement,” “applied wrong legal standard,” and others).) The
27 Court concludes that Guerrero states a claim under 42 U.S.C. § 1983 for Fourth
28
1 Amendment unreasonable seizure that is sufficient to pass initial screening. See Lopez, 203
2 F.3d at 1126‒27.
3 Guerrero has only named one arresting officer, and only in the body of the complaint,
4 not in the caption. Nevertheless, the Court will interpret that officer—Laura Adler—as a
5 defendant. See Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir.
6 2014) (“A party may be properly in a case if the allegations in the body of the complaint
7 make it plain that the party is intended as a defendant.” (cleaned up)).
8 All other claims mentioned in Guerrero’s complaint—including requests to
9 investigate unnamed third parties and family members—are dismissed for failure to state
10 a claim. This includes all claims against the San Diego Police Department—sued as “SDPD
11 Carmel Valley”2—as there are only conclusory allegations that could support liability
12 against the department. See Castro v. Cnty. of L.A., 833 F.3d 1060, 1073 (9th Cir. 2016)
13 (noting that municipalities cannot be held liable for their agents’ actions and that “[i]n order
14 to establish municipal liability, a plaintiff must show that a policy or custom led to the
15 plaintiff’s injury” (cleaned up)).
16 MOTION TO APPOINT COUNSEL
17 Guerrero also moves for appointed counsel. “Generally, a person has no right to
18 counsel in civil actions.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Even under
19 the statutory authority to recruit counsel in civil cases, the Court cannot force attorneys to
20 represent an indigent civil litigant. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa,
21 490 U.S. 296, 310 (1989) (holding that the relevant statute—28 U.S.C. § 1915—“does not
22 authorize the federal courts to make coercive appointments of counsel”). But “a court may
23 under ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant to
24 28 U.S.C. § 1915(e)(1).” Palmer, 560 F.3d at 970 (citation omitted). “When determining
25 whether exceptional circumstances exist, a court must consider the likelihood of success
26
27
2 Although the complaint names “SDPD Carmel Valley,” it was entered into the
28
1 on the merits as well as the ability of the petitioner to articulate h[er] claims pro se in light
2 of the complexity of the legal issues involved.” Id. (citation and quotation marks omitted).
3 Guerrero has not met the burden for judicial recruitment of counsel. She points to no
4 extraordinary circumstances, and she has not described any efforts to secure pro bono
5 counsel on her own before requesting counsel. (See ECF 2 (leaving blank the portions about
6 her own efforts).) The likelihood of success on the merits is unclear, as the Court has no
7 evidence before it. Finally, Guerrero has so far articulated her factual allegations with
8 clarity. (See generally ECF 1.) Thus, the motion to appoint counsel is denied.
9 CONCLUSION
10 Based on these allegations, Guerrero’s complaint survives the “low threshold” for
11 proceeding past the § 1915(e) screening on a claim for unreasonable seizure against Laura
12 Adler. See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). So, the Court
13 GRANTS Guerrero’s IFP motion. But she has not met the requirements for recruitment of
14 counsel, so that motion is DENIED.
15 The Clerk is directed to update the case caption to correct “SDPD Caramel Valley”
16 to “SDPD Carmel Valley” and to add Laura Adler as a defendant. The Clerk must also
17 issue a summons as to the complaint upon Laura Adler and forward the summons to
18 Guerrero along with a blank version of U.S. Marshal Form 285. In addition, the Clerk will
19 provide Guerrero with a certified copy of this Order, a certified copy of her complaint, and
20 the summons. Guerrero must complete each USM Form 285 completely and accurately,
21 include addresses where defendants may be found or are subject to service under Civil
22 Local Rule 4.1c, and return them to the U.S. Marshal according to the instructions the Clerk
23 provides.
24 The U.S. Marshal is ORDERED to serve a copy of the complaint and summons
25 upon defendant Adler as directed by Guerrero on each completed USM Form 285, and to
26 promptly file proof of service—or proof of any unsuccessful attempt at service—with the
27 Clerk of Court. See CivLR 5.2. All costs of that service will be advanced by the
28 United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
1 Guerrero is ORDERED, after original service by the U.S. Marshal, to serve on
2 ||defendant or her counsel a copy of every further pleading, motion, or other document
3 ||submitted for the Court’s consideration, under Federal Rule of Civil Procedure 5(b).
4 ||Guerrero must include with every original document she seeks to file with the Court a
5 || certificate stating the manner and date in which a true and correct copy of that document
6 || was served on defendants or their counsel. See CivLR 5.2. Any document received by the
7 || Court that has not been properly filed with the Clerk, or that fails to include a certificate of
8 service upon defendants or their counsel, may be disregarded.
9 Dated: August 22, 2023
10 Z | f.
11 Andrew G. Schopler
United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28