1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEBBIE BAIZE, Case No. 21-cv-01262-BAS-KSC
12 Plaintiff, ORDER DISMISSING ACTION 13 v. WITH PREJUDICE
14 UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF 15 CALIFORNIA, 16 Defendant. 17
18 In response to the Court’s September 20, 2021 order dismissing Plaintiff Debbie 19 Baize’s First Amended Complaint (“Second Dismissal Order”) (ECF No. 17), Plaintiff has 20 filed three documents regarding her claims in this case. (ECF Nos. 19, 20, 22.) The Court 21 construes the first document (ECF No. 19) as a motion to appoint counsel, the third such 22 motion Plaintiff has filed in this action. The Court construes the second document (ECF 23 No. 20) and the third document (ECF No. 22) as a Second Amended Complaint and 24 corrected Second Amended Complaint, respectively. The Court construes the third-filed 25 document as the operative pleading. For the reasons set forth below, the Court (1) 26 DISMISSES WITH PREJUDICE this action and (2) TERMINATES AS MOOT 27 Plaintiff’s motion to appoint counsel. 28 1 I. LEGAL STANDARD 2 A. Section 1915(d) Pre-Answer Screening 3 Because Plaintiff is proceeding in forma pauperis (“IFP”),1 her SAC requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2)(B). See Lopez v. Smith, 203 F.3d 5 1122, 1129 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) applies to all [IFP] complaints, 6 not just those filed by prisoners.”). Under this statute, the Court must sua sponte dismiss 7 a plaintiff’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 8 claim, or seeks damages from defendants who are immune. Id. at 1126–27 (9th Cir. 2000) 9 (discussing 28 U.S.C. § 1915(e)(2)). “The purpose of [screening] is ‘to ensure that the 10 targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 12 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 13 Claims are “by definition” frivolous where there is “no merit to the underlying 14 action[.]” Lopez, 203 F.3d at 1127 n.8; Neitzke v. Williams, 490 U.S. 319, 325 (1989) 15 (defining an action as frivolous if “it lacks an arguable basis either in law or in fact”). 16 Actions that “‘merely repeat pending or previously litigated claims’” are considered 17 frivolous under § 1915(e)(2)(B)(i). Thomas v. Richard J. Donovan Corr. Facility Warden, 18 No. 3:19-cv-02181-JAH-RBB, 2020 WL 364228, at *5 n.4 (S.D. Cal. Jan. 22, 2020) 19 (quoting Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995)); see Martinez v. 20 Bureau of Immigr. & Customs Enf’t, 316 F. App’x 640, 641 (9th Cir. 2009) (unpublished) 21 (finding no abuse of discretion where district court dismissed complaint as frivolous 22 because it repeated previously litigated claims). 23 Further, under Section 1915(e)(2)(B)(ii), a complaint fails to state a claim where it 24 does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is 25 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks 26 omitted); see also Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (standard under 27
28 1 § 1915(e)(2)(B)(ii) is the same as Rule 12(b)(6)). A complaint must provide a defendant 2 fair notice of the plaintiff’s claims and the ground upon which it rests, Conley v. Gibson, 3 355 U.S. 41, 47 (1957), and allege facts to state a claim for relief that is plausible on its 4 face. Iqbal, 556 U.S. at 678. Detailed factual allegations are not required, but “[t]hreadbare 5 recitals of the elements of a cause of action, supported by mere conclusory statements, do 6 not suffice.” Iqbal, 556 U.S. at 678. 7 In addition, duplicative lawsuits filed by a plaintiff proceeding IFP are [also] subject 8 to dismissal as either frivolous or malicious under Section 1915(e). Cato v. United States, 9 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). “[I]n assessing whether the second action is 10 duplicative of the first, [courts] examine whether the cause of action and relief sought, as 11 well as the parties or privies to the action, are the same.” Adams v. Cal. Dep’t of Health 12 Servs., 487 F.3d 684, 688 (9th Cir. 2007). 13 B. Motion to Appoint Counsel 14 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 15 Servs., 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1) district courts have 16 limited discretion to “request” that an attorney represent an indigent civil litigant, this 17 discretion is exercised only under “exceptional circumstances.” Id.; see also Terrell v. 18 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances 19 requires “an evaluation of the likelihood of the plaintiff’s success on the merits and an 20 evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of the 21 legal issues involved.’” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 22 2004) (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 23 II. DISCUSSION 24 In her SAC, Plaintiff alleges that she was “[f]or seven years detained against [her] 25 will by this Southern District of California unlawfully on false charges” in “violation of 26 [her] constitutional [and] civil rights,” including her rights to “liberty, freedom of speech, 27 freedom of religion, freedom of press, [and] freedom of expression.” (SAC 2–3.) She 28 1 alleges that she is “living claim [sic] proof” that her “civil/constitutional rights were 2 violated.” (Id. 3.) 3 Plaintiff’s SAC fails to state a claim for relief for several reasons. First and foremost, 4 as explained in the Court’s Second Dismissal Order, the United States District Court for 5 the Southern District of California “is not a proper defendant to this action.” (Dismissal 6 Order 4 (citing Jones v. Vandenberg, 52 F. App’x 418 (9th Cir. 2002) (unpublished) 7 (affirming district court’s dismissal of civil rights action “against the United States District 8 Court and court officials because these defendants are immune from liability”)); see also 9 Reinhardt v. Beck, No. 1:11-CV-01015-OWW, 2011 WL 2909872, at *2 (E.D. Cal. July 10 15, 2011) (“[T]he United States District Court is not a ‘person’ and is not a proper 11 defendant under Section 1983.”); Hensley v. U.S. Dist. Ct. E. Dist. of Cal., No. CIV S-07- 12 1546 FCD DAD PS, 2008 WL 480000, at *14 (E.D. Cal. Feb. 19, 2008) (“Plaintiffs cannot 13 proceed against the United States District Court under the Federal Tort Claims Act or in a 14 Bivens action.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEBBIE BAIZE, Case No. 21-cv-01262-BAS-KSC
12 Plaintiff, ORDER DISMISSING ACTION 13 v. WITH PREJUDICE
14 UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF 15 CALIFORNIA, 16 Defendant. 17
18 In response to the Court’s September 20, 2021 order dismissing Plaintiff Debbie 19 Baize’s First Amended Complaint (“Second Dismissal Order”) (ECF No. 17), Plaintiff has 20 filed three documents regarding her claims in this case. (ECF Nos. 19, 20, 22.) The Court 21 construes the first document (ECF No. 19) as a motion to appoint counsel, the third such 22 motion Plaintiff has filed in this action. The Court construes the second document (ECF 23 No. 20) and the third document (ECF No. 22) as a Second Amended Complaint and 24 corrected Second Amended Complaint, respectively. The Court construes the third-filed 25 document as the operative pleading. For the reasons set forth below, the Court (1) 26 DISMISSES WITH PREJUDICE this action and (2) TERMINATES AS MOOT 27 Plaintiff’s motion to appoint counsel. 28 1 I. LEGAL STANDARD 2 A. Section 1915(d) Pre-Answer Screening 3 Because Plaintiff is proceeding in forma pauperis (“IFP”),1 her SAC requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2)(B). See Lopez v. Smith, 203 F.3d 5 1122, 1129 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) applies to all [IFP] complaints, 6 not just those filed by prisoners.”). Under this statute, the Court must sua sponte dismiss 7 a plaintiff’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 8 claim, or seeks damages from defendants who are immune. Id. at 1126–27 (9th Cir. 2000) 9 (discussing 28 U.S.C. § 1915(e)(2)). “The purpose of [screening] is ‘to ensure that the 10 targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 12 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 13 Claims are “by definition” frivolous where there is “no merit to the underlying 14 action[.]” Lopez, 203 F.3d at 1127 n.8; Neitzke v. Williams, 490 U.S. 319, 325 (1989) 15 (defining an action as frivolous if “it lacks an arguable basis either in law or in fact”). 16 Actions that “‘merely repeat pending or previously litigated claims’” are considered 17 frivolous under § 1915(e)(2)(B)(i). Thomas v. Richard J. Donovan Corr. Facility Warden, 18 No. 3:19-cv-02181-JAH-RBB, 2020 WL 364228, at *5 n.4 (S.D. Cal. Jan. 22, 2020) 19 (quoting Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995)); see Martinez v. 20 Bureau of Immigr. & Customs Enf’t, 316 F. App’x 640, 641 (9th Cir. 2009) (unpublished) 21 (finding no abuse of discretion where district court dismissed complaint as frivolous 22 because it repeated previously litigated claims). 23 Further, under Section 1915(e)(2)(B)(ii), a complaint fails to state a claim where it 24 does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is 25 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks 26 omitted); see also Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (standard under 27
28 1 § 1915(e)(2)(B)(ii) is the same as Rule 12(b)(6)). A complaint must provide a defendant 2 fair notice of the plaintiff’s claims and the ground upon which it rests, Conley v. Gibson, 3 355 U.S. 41, 47 (1957), and allege facts to state a claim for relief that is plausible on its 4 face. Iqbal, 556 U.S. at 678. Detailed factual allegations are not required, but “[t]hreadbare 5 recitals of the elements of a cause of action, supported by mere conclusory statements, do 6 not suffice.” Iqbal, 556 U.S. at 678. 7 In addition, duplicative lawsuits filed by a plaintiff proceeding IFP are [also] subject 8 to dismissal as either frivolous or malicious under Section 1915(e). Cato v. United States, 9 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). “[I]n assessing whether the second action is 10 duplicative of the first, [courts] examine whether the cause of action and relief sought, as 11 well as the parties or privies to the action, are the same.” Adams v. Cal. Dep’t of Health 12 Servs., 487 F.3d 684, 688 (9th Cir. 2007). 13 B. Motion to Appoint Counsel 14 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 15 Servs., 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1) district courts have 16 limited discretion to “request” that an attorney represent an indigent civil litigant, this 17 discretion is exercised only under “exceptional circumstances.” Id.; see also Terrell v. 18 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances 19 requires “an evaluation of the likelihood of the plaintiff’s success on the merits and an 20 evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of the 21 legal issues involved.’” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 22 2004) (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 23 II. DISCUSSION 24 In her SAC, Plaintiff alleges that she was “[f]or seven years detained against [her] 25 will by this Southern District of California unlawfully on false charges” in “violation of 26 [her] constitutional [and] civil rights,” including her rights to “liberty, freedom of speech, 27 freedom of religion, freedom of press, [and] freedom of expression.” (SAC 2–3.) She 28 1 alleges that she is “living claim [sic] proof” that her “civil/constitutional rights were 2 violated.” (Id. 3.) 3 Plaintiff’s SAC fails to state a claim for relief for several reasons. First and foremost, 4 as explained in the Court’s Second Dismissal Order, the United States District Court for 5 the Southern District of California “is not a proper defendant to this action.” (Dismissal 6 Order 4 (citing Jones v. Vandenberg, 52 F. App’x 418 (9th Cir. 2002) (unpublished) 7 (affirming district court’s dismissal of civil rights action “against the United States District 8 Court and court officials because these defendants are immune from liability”)); see also 9 Reinhardt v. Beck, No. 1:11-CV-01015-OWW, 2011 WL 2909872, at *2 (E.D. Cal. July 10 15, 2011) (“[T]he United States District Court is not a ‘person’ and is not a proper 11 defendant under Section 1983.”); Hensley v. U.S. Dist. Ct. E. Dist. of Cal., No. CIV S-07- 12 1546 FCD DAD PS, 2008 WL 480000, at *14 (E.D. Cal. Feb. 19, 2008) (“Plaintiffs cannot 13 proceed against the United States District Court under the Federal Tort Claims Act or in a 14 Bivens action.”). Simply put, judicial immunity has been found to protect the Court from 15 suit in these cases. Yet, Plaintiff’s SAC, like her FAC, names only the Court as Defendant. 16 It does not name a single non-immune Defendant. For that reason alone, Plaintiff fails to 17 state a cognizable claim. 18 Even if Plaintiff were permitted to proceed against Defendant, dismissal still would 19 be warranted, for the SAC contains no factual statements that enable this Court to decipher 20 how Defendant caused the constitutional violations of which she complains. See McHenry 21 v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (holding that a complaint must “fully se[t] 22 forth who is being sued, for what relief, and on what theory, with enough detail to guide 23 discovery”). More fundamentally, the SAC contains no facts; it lists only legal 24 conclusions, which this Court cannot credit as true to determine whether Plaintiff has stated 25 a claim for relief. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true 26 all of the allegations contained in a complaint is inapplicable to legal conclusions.”); Bell 27 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (“[C]ourts are not bound to accept as true a legal 28 conclusion couched as a factual allegation[.]” (quotations omitted)). Despite having had 1 three opportunities to do so, none of Plaintiff’s pleadings provide a scintilla of factual 2 background from which to infer she has a plausible claim for relief. Because the SAC lacks 3 sufficient factual matter to state a claim, it is subject to dismissal. Morrison v. United 4 States, 270 F. App’x 514, 515 (9th Cir. 2008) (unpublished) (affirming dismissal because 5 the complaint contained “a confusing array of vague and undeveloped allegations and does 6 not allege sufficient facts … for any federal claim for relief”). 7 Finally, as noted in the Second Dismissal Order, “the Court takes judicial notice of 8 the fact that Plaintiff has pending in this district at least one other action that appears to 9 raise essentially the same claims against the same party named in this lawsuit.” (Order 5 10 (citing Baize v. United States, et al., 17-CV-01328-WQH-KSC (S.D. Cal.) (ECF No. 1)).) 11 This Court has already observed that the actions appear substantially identical. (Dismissal 12 Order 5.) The SAC proffers no facts to dissuade the Court of that conclusion or to enable 13 it to probe the extent of the overlap. 14 Because this is the third pleading in which Plaintiff seeks to sue an immune 15 defendant only, fails to state a claim for relief given the absence of any well-pleaded fact, 16 and seeks to pursue duplicative lawsuits, the Court finds dismissal with prejudice 17 appropriate under Section 1915(e)(2)(ii). See Nevijel v. N. Coast Life Ins. Co., 651 F.2d 18 671, 673 (9th Cir. 1981) (“A complaint which fails to comply with [Rule 8] may be 19 dismissed with prejudice[.]”); Forman v. Davis, 371 U.S. 178, 182 (1962) (holding 20 “repeated failure to cure deficiencies by amendments previously allowed” favors dismissal 21 with prejudice). 22 Consequently, dismissal of Plaintiff’s SAC with prejudice and the resulting closure 23 of this action terminate as moot Plaintiff’s motion for appointment of counsel. (Dismissal 24 Order 5 (citing Baize v. Austin, No. 16-CV-01893-BAS-RBB, 2016 WL 4127803, at *1 25 (S.D. Cal. Aug. 3, 2016)).) 26 // 27 // 28 // 1 CONCLUSION AND ORDER 2 For the foregoing reasons, the Court DISMISSES WITH PREJUDICE the action 3 |}and consequently TERMINATES AS MOOT Plaintiff's request for counsel (ECF No. 4 The clerk of court is directed to close this action. 5 IT IS SO ORDERED. 6 A , 7 || DATED: October 19, 2021 Lin A (Lyphaa. 6 g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _f.