1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAULA A. ANDERSON, Case No.: 23cv1615-JES (KSC)
12 Plaintiff, ORDER: 13 v. (1) DENYING MOTION FOR LEAVE 14 CARLOS DEL TORO, Secretary of the TO PROCEED IN FORMA Navy, 15 PAUPERIS; Defendant. 16 (2) DISMISSING COMPLAINT 17 PURSUANT TO SCREENING UNDER 28 U.S.C. § 1915(e); and 18
19 (3) DENYING WITHOUT PREJUDICE MOTION TO APPOINT 20 COUNSEL 21 [ECF Nos. 2, 3] 22
23 24 On September 1, 2023, Plaintiff Paula Anderson filed the instant action, alleging 25 various violations related to her prior employment. ECF No. 1. Plaintiff filed a concurrent 26 motion to proceed in forma pauperis (“IFP”) and motion to appoint counsel. ECF Nos. 2, 27 3. After due consideration and for the reasons set forth below, the Court DENIES the 28 motion to proceed IFP, DISMISSES Plaintiff’s complaint under 28 U.S.C. § 1915(e), 1 and DENIES WITHOUT PREJUDICE Plaintiff’s motion to appoint counsel. 2 I. BACKGROUND 3 Plaintiff’s complaint asserts several causes of action arising from her prior 4 employment. First, she alleges wrongful termination and discrimination based on the 5 following factual allegations. Id. Plaintiff alleges that on April 1, 2022, she was injured 6 “on the second job” while continuing to work in the Child and Youth Program (“CYP”) 7 at MCCS Miramar.1 ECF No. 1 at 2. She worked there through April 20, 2022, the last 8 day she was “authorized to work.” Id. She alleges that she could “perform the essential 9 functions of the position in question without reasonable accommodation each day.” Id. 10 However, she also alleges that on April 20, 2022, she handed a Work Activity Status 11 (“WAS”) report to an assistant manager, Ms. Sharon Jones, to request a reasonable 12 accommodation. Id. She alleges that she was told to go home and return the following 13 day, on April 21. Id. When she did return the next day, she alleges that the CYP manager, 14 Ms. Krisa Einolander, met her in the lobby and told her to go back home for the day, but 15 that she would still be paid, and to return the following Monday. Id. Plaintiff alleges that 16 on April 25, 2022, the human resources director, Ms. April Bright, and assistant manager 17 gave her a Notification of Proposal to Terminate Employment. 18 Second, Plaintiff alleges willful negligence against CYP deciding official, Ms. 19 Clarissa Bowe. Id. The allegations are not clear, but it seems that Plaintiff is quoting from 20 a written action dated May 26, 2022, which states “I have received and reviewed 21 statements provided by Ms. Einolander, CYP Assistant Manager Sheron Jones, and CYP 22 cook Paola DiDomenico. I have also reviewed previous documentation related to this 23 case and video footage for 04 April 2022 and 14 April 2022.” Id. Providing no further 24 factual details about what the statement references, Plaintiff alleges that the deciding 25 official “acted with actual malice and undue care against [her] employment.” Id. 26
27 1 MCCS stands for “Marine Corp Community Services.” It is not clear from the Complaint whether 28 1 Third, Plaintiff alleges a cause of action against the CYP manager for harassment, 2 defamation, and hostile work environment. Id. She alleges that on February 10, 2021, Ms. 3 DiDomenico called her a “bully” and she was served a Letter of Caution at the end of an 4 unspecified meeting. Id. 5 Fourth, Plaintiff alleges that the manager harassed and defamed her. Id. Plaintiff 6 alleges that her “genetic information” is that she was born with “black/brown pigmented 7 skin.” Thus, it appears that she may be alleging harassment and defamation based on her 8 race. 9 II. Motion to Proceed In Forma Pauperis 10 The Court first addresses Plaintiff’s motion to proceed in forma pauperis (IFP). 11 ECF No. 3. It is well-settled that a party need not be completely destitute to proceed IFP. 12 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). The 13 determination of indigency falls within the district court’s discretion. See Cal. Men’s 14 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (noting “Section 1915 typically 15 requires the reviewing court to exercise its sound discretion in determining whether the 16 affiant has satisfied the statute’s requirement of indigency”), rev’d on other grounds, 506 17 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where it 18 alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 19 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 20 339). At the same time, however, “the same even-handed care must be employed to 21 assure that federal funds are not squandered to underwrite, at public expense . . . the 22 remonstrances of a suitor who is financially able, in whole or in material part, to pull his 23 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Finally, the facts 24 as to the litigant’s indigency must be stated “with some particularity, definiteness and 25 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 26 Here, Plaintiff states that she receives monthly income of $32,172, comprising of: 27 retirement in the amount of $3,853, disability in the amount of $7,744, and “other” in the 28 amount of $20,575. ECF No. 3 at 3. She states that she has two cars, one worth 1 approximately $7,000 and another $15,000. Id. at 3. She has a checking account with 2 about $400.00. Id. She claims monthly expenses totaling $1836. Id. at 4-5. With this 3 financial information as background, the Court finds that Plaintiff has not made the 4 requisite showing that she lacks the financial resources to pay the filing fees associated 5 with commencing this lawsuit. Based on Plaintiff’s income as stated in the application, 6 she has significant resources to pay the filing fee. Thus, the Court DENIES the motion to 7 proceed IFP at this time. 8 III. Screening under 28 U.S.C. § 1915(a) 9 A complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is subject 10 to a mandatory and sua sponte review by the Court. Lopez v. Smith, 203 F.3d 1122, 1127 11 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous or malicious, fails 12 to state a claim upon which relief may be granted, or seeks monetary relief from a 13 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To pass screening, all 14 complaints must contain a “short and plain statement of the claim showing that the 15 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 16 While Plaintiff provides some factual background to support her allegations, her 17 complaint falls short of stating claims for the causes of action she asserts.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAULA A. ANDERSON, Case No.: 23cv1615-JES (KSC)
12 Plaintiff, ORDER: 13 v. (1) DENYING MOTION FOR LEAVE 14 CARLOS DEL TORO, Secretary of the TO PROCEED IN FORMA Navy, 15 PAUPERIS; Defendant. 16 (2) DISMISSING COMPLAINT 17 PURSUANT TO SCREENING UNDER 28 U.S.C. § 1915(e); and 18
19 (3) DENYING WITHOUT PREJUDICE MOTION TO APPOINT 20 COUNSEL 21 [ECF Nos. 2, 3] 22
23 24 On September 1, 2023, Plaintiff Paula Anderson filed the instant action, alleging 25 various violations related to her prior employment. ECF No. 1. Plaintiff filed a concurrent 26 motion to proceed in forma pauperis (“IFP”) and motion to appoint counsel. ECF Nos. 2, 27 3. After due consideration and for the reasons set forth below, the Court DENIES the 28 motion to proceed IFP, DISMISSES Plaintiff’s complaint under 28 U.S.C. § 1915(e), 1 and DENIES WITHOUT PREJUDICE Plaintiff’s motion to appoint counsel. 2 I. BACKGROUND 3 Plaintiff’s complaint asserts several causes of action arising from her prior 4 employment. First, she alleges wrongful termination and discrimination based on the 5 following factual allegations. Id. Plaintiff alleges that on April 1, 2022, she was injured 6 “on the second job” while continuing to work in the Child and Youth Program (“CYP”) 7 at MCCS Miramar.1 ECF No. 1 at 2. She worked there through April 20, 2022, the last 8 day she was “authorized to work.” Id. She alleges that she could “perform the essential 9 functions of the position in question without reasonable accommodation each day.” Id. 10 However, she also alleges that on April 20, 2022, she handed a Work Activity Status 11 (“WAS”) report to an assistant manager, Ms. Sharon Jones, to request a reasonable 12 accommodation. Id. She alleges that she was told to go home and return the following 13 day, on April 21. Id. When she did return the next day, she alleges that the CYP manager, 14 Ms. Krisa Einolander, met her in the lobby and told her to go back home for the day, but 15 that she would still be paid, and to return the following Monday. Id. Plaintiff alleges that 16 on April 25, 2022, the human resources director, Ms. April Bright, and assistant manager 17 gave her a Notification of Proposal to Terminate Employment. 18 Second, Plaintiff alleges willful negligence against CYP deciding official, Ms. 19 Clarissa Bowe. Id. The allegations are not clear, but it seems that Plaintiff is quoting from 20 a written action dated May 26, 2022, which states “I have received and reviewed 21 statements provided by Ms. Einolander, CYP Assistant Manager Sheron Jones, and CYP 22 cook Paola DiDomenico. I have also reviewed previous documentation related to this 23 case and video footage for 04 April 2022 and 14 April 2022.” Id. Providing no further 24 factual details about what the statement references, Plaintiff alleges that the deciding 25 official “acted with actual malice and undue care against [her] employment.” Id. 26
27 1 MCCS stands for “Marine Corp Community Services.” It is not clear from the Complaint whether 28 1 Third, Plaintiff alleges a cause of action against the CYP manager for harassment, 2 defamation, and hostile work environment. Id. She alleges that on February 10, 2021, Ms. 3 DiDomenico called her a “bully” and she was served a Letter of Caution at the end of an 4 unspecified meeting. Id. 5 Fourth, Plaintiff alleges that the manager harassed and defamed her. Id. Plaintiff 6 alleges that her “genetic information” is that she was born with “black/brown pigmented 7 skin.” Thus, it appears that she may be alleging harassment and defamation based on her 8 race. 9 II. Motion to Proceed In Forma Pauperis 10 The Court first addresses Plaintiff’s motion to proceed in forma pauperis (IFP). 11 ECF No. 3. It is well-settled that a party need not be completely destitute to proceed IFP. 12 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). The 13 determination of indigency falls within the district court’s discretion. See Cal. Men’s 14 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (noting “Section 1915 typically 15 requires the reviewing court to exercise its sound discretion in determining whether the 16 affiant has satisfied the statute’s requirement of indigency”), rev’d on other grounds, 506 17 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where it 18 alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 19 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 20 339). At the same time, however, “the same even-handed care must be employed to 21 assure that federal funds are not squandered to underwrite, at public expense . . . the 22 remonstrances of a suitor who is financially able, in whole or in material part, to pull his 23 own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Finally, the facts 24 as to the litigant’s indigency must be stated “with some particularity, definiteness and 25 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 26 Here, Plaintiff states that she receives monthly income of $32,172, comprising of: 27 retirement in the amount of $3,853, disability in the amount of $7,744, and “other” in the 28 amount of $20,575. ECF No. 3 at 3. She states that she has two cars, one worth 1 approximately $7,000 and another $15,000. Id. at 3. She has a checking account with 2 about $400.00. Id. She claims monthly expenses totaling $1836. Id. at 4-5. With this 3 financial information as background, the Court finds that Plaintiff has not made the 4 requisite showing that she lacks the financial resources to pay the filing fees associated 5 with commencing this lawsuit. Based on Plaintiff’s income as stated in the application, 6 she has significant resources to pay the filing fee. Thus, the Court DENIES the motion to 7 proceed IFP at this time. 8 III. Screening under 28 U.S.C. § 1915(a) 9 A complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is subject 10 to a mandatory and sua sponte review by the Court. Lopez v. Smith, 203 F.3d 1122, 1127 11 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous or malicious, fails 12 to state a claim upon which relief may be granted, or seeks monetary relief from a 13 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To pass screening, all 14 complaints must contain a “short and plain statement of the claim showing that the 15 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 16 While Plaintiff provides some factual background to support her allegations, her 17 complaint falls short of stating claims for the causes of action she asserts. Plaintiff 18 generally alleges discrimination, harassment, wrongful termination, defamation, and 19 negligence but does not specify whether she is suing under federal or state law. This lack 20 of specificity in the complaint presents a problem for several legal reasons. First, under 21 sovereign immunity, the United States is immune for suit unless it consents. McGuire v. 22 United States, 550 F.3d 903, 913 (9th Cir. 2008). For example, for discrimination claims, 23 Congress has waived federal government immunity under Title VII for alleging 24 discrimination by federal employees on basis of race, color, religion, sex, or national 25 origin. 42 U.S.C. § 2000e-16. For common law tort claims, such as negligence, the 26 Federal Tort Claims Act (“FTCA”) waives federal government immunity as well. 27 However, other federal and state statutes do not waive immunity. Thus, without knowing 28 the precise provisions that Plaintiff is suing under, she fails to state claims that may be 1 brought against the federal government. Second, even if Plaintiff’s complaint was 2 interpreted to state a claim under a statute like Title VII or the FTCA for which the 3 federal government has waived immunity, prior to suing under any of these provisions, 4 the plaintiff must exhaust administrative remedies prior to be able to bring suit in federal 5 court. Sommatino v. United States, 255 F.3d 704, 709 (9th Cir. 2001) (discrimination 6 claims under Title VII must first be presented to an appropriate administrative agency); 7 Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992) (no federal subject matter 8 jurisdiction unless plaintiff alleges exhaustion of administrative remedies in FTCA 9 cases). Plaintiff’s complaint includes no allegations related to exhaustion of 10 administrative remedies. Accordingly, the Court dismisses the complaint without 11 prejudice pursuant to § 1915(e). 12 IV. Motion to Appoint Counsel 13 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 14 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). In pro se and in forma 15 pauperis proceedings, district courts do not have the authority “to make coercive 16 appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 17 (1989). But they do have discretion to request that an attorney represent indigent civil 18 litigants upon a showing of “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); 19 Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Finding 20 exceptional circumstances entails “an evaluation of both the ‘likelihood of success on the 21 merits and the ability of the plaintiff to articulate his claims pro se in light of the 22 complexity of the legal issues involved.’ Neither of these issues is dispositive and both 23 must be viewed together before reaching a decision.” Terrell v. Brewer, 935 F.2d 1015, 24 1017 (9th Cir. 1991), quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 25 1986). 26 Because the Court has already found above that Plaintiff’s complaint does not 27 currently state a claim upon which relief can be granted, Plaintiff has not demonstrated a 28 likelihood of success on the merits and therefore, exceptional circumstances that warrant 1 || appointment of counsel at this time. Accordingly, the Court DENIES WITHOUT 2 || PREJUDICE Plaintiffs request for appointment of counsel. 3 Vv. CONCLUSION 4 For the reasons discussed above, the Court DENIES the motion to proceed IFP, 5 || DISMISSES the complaint pursuant to 28 U.S.C. § 1915, and DENIES WITHOUT 6 ||} PREJUDICE the motion to appoint counsel. Plaintiff shall have until September 29, 7 || 2023, to either pay the filing fee,” and file an amended complaint if she wishes to proceed 8 || with the case. 9 IT IS SO ORDERED. 10 Dated: September 13, 2023 “| pti mene 4, 12 Honorable James E. Simmons Jr 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Paint may alternatively resubmit a motion to proceed IFP if there are inaccuracies in the prior IFP