1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NOUREDDINE ECASALI, Case No. 24-cv-02489-BAS-JLB
12 Plaintiff, ORDER: 13 v. 1. GRANTING MOTION TO PROCEED IN FORMA 14 SCOTT MCMILLIN, et al., PAUPERIS (ECF No. 2); 15 Defendants. 2. DISMISSING THE COMPLAINT FOR FAILURE 16 TO STATE A CLAIM WITH 17 LEAVE TO AMEND; AND 3. DENYING MOTION FOR 18 APPOINTMENT OF 19 COUNSEL (ECF No. 3)
22 Plaintiff files suit against eighteen Defendants, both corporate and individual, 23 without distinguishing between Defendants, alleging violations of the Federal Fair Housing 24 Act, California Fair Housing Act, and the Fourteenth Amendment. (ECF No. 1.) 25 Simultaneously, Plaintiff files a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 26 2) and a Motion for Appointment of Counsel (ECF No. 3). 27 The Court finds Plaintiff has made a sufficient showing of poverty and GRANTS 28 the Motion to Proceed IFP. (ECF No. 2.) However, because Plaintiff has failed to allege 1 sufficient facts to state a claim, the Court DISMISSES the Complaint with leave to amend 2 and DENIES Plaintiff’s Motion for Appointment of Counsel. (ECF No. 3.) 3 I. BACKGROUND 4 Plaintiff files suit against Scott McMillin; Mark D. McMillin; C. Ann McMillin; 5 Andy McMillin; McMillin Realty, Inc.; McMillin, LLC; McMillin Home Construction, 6 Inc.; MCFT Holdings, LLC; DNMS Holdings, LLC; Central Valley Investors II, LLC; 7 Lawrence D. Crandall; Nick Crandall; Andrew Parashos; Nicole Sarber; Jennifer Nicole 8 Phillips; Torrey Pines Property Management, Inc.; Torrey Pines Repair and Construction, 9 Inc.; and Legacy Commercial Management, Inc. (ECF No. 1.) 10 According to her Complaint, “Defendants refuse to lease the unit for me because of 11 my National Origin, Religious belief—and also because I was using an Assistance Voucher 12 (Section 8).” (Id. at 2:6–8.) Plaintiff further claims Defendants “only lease to White people 13 . . . discriminating against colored people including myself.” (Id. at 2:7–10.) Finally, 14 Plaintiff alleges that to “[a]dd insult to injury[,] Defendants McMillins has just filed a 15 lawsuit against City of San Diego last September because the City is building housing for 16 Disadvantaged people by SD Airport[,] and the City has given McMillin a property worth 17 billions of Dollars for only $8.” (Id. at 2:21–26.) Plaintiff does not name any Defendants 18 individually, nor explain their role in the alleged events. Plaintiff also does not specify 19 where she wished to lease a unit, who owned that unit or how the City’s gift of property to 20 McMillin pertains to her Fair Housing Act claim. 21 II. ANALYSIS 22 A. IFP 23 Plaintiff files a Motion to Proceed IFP. (ECF No. 2.) Under 28 U.S.C. § 1915, a 24 litigant who because of indigency is unable to pay the required fees or security to 25 commence a legal action may petition the Court to proceed without making such payment. 26 The determination of indigency falls within the district court’s discretion. Cal. Men’s 27 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically requires 28 the reviewing court to exercise its sound discretion in determining whether the affiant has 1 satisfied the statute’s requirement of indigency.”), rev’d on other grounds, 506 U.S. 194 2 (1993). A party need not be completely destitute to satisfy the IFP indigency threshold. 3 See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To qualify 4 for IFP status, “an affidavit is sufficient which states that one cannot because of his ‘poverty 5 pay or give security for costs . . . and still be able to provide’ himself and dependents ‘with 6 the necessities of life.’” Id. at 339. However, “care must be employed to assure that federal 7 funds are not squandered to underwrite, at public expense, . . . the remonstrances of a suitor 8 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 9 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 10 Plaintiff lists $0 on every line of the IFP application—both income and expenses. 11 Although this might give the Court pause as to how she is subsisting, she does list 12 “CalFresh” under “food” expenses and “Medicaid” under “medical and dental” expenses. 13 (ECF No. 2 at 4 § 8.) In addition, in the Complaint, Plaintiff refers to receiving Section 8 14 housing. (ECF No. 1 at 2:4–6.) Therefore, the Court concludes Plaintiff is sufficiently 15 indigent that she is unable to pay the filing fee. 16 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP. (ECF No. 2.) 17 B. Pre-answer Screening 18 1. Legal Standard 19 Because Plaintiff is proceeding IFP, the Complaint also requires a pre-answer 20 screening pursuant to 28 U.S.C. § 1915(e)(2)(B). See Lopez v. Smith, 203 F.3d 1122, 1129 21 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) applies to all in forma pauperis complaints, 22 not just those filed by prisoners.”). Under this statute, the Court must sua sponte dismiss 23 a plaintiff’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 24 claim, or seeks damages from defendants who are immune. Id. at 1126–27 (9th Cir. 2000) 25 (discussing 28 U.S.C. § 1915(e)(2)). 26 “The standard for determining whether a plaintiff has failed to state a claim for relief 27 under which one can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as the 28 [Federal Rule of Civil Procedure (“Rule”) 12(b)(6)] standard for failure to state a claim. 1 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 2 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to 28 U.S.C. § 1915 3 “incorporates the familiar standard applied in the context of failure to state a claim under 4 [Rule] 12(b)(6)”). 5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 6 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Determining whether a complaint states a 8 plausible claim for relief [is] . . . a context-specific task that requires the reviewing court 9 to draw on its judicial experience and common sense.” Id. The “mere possibility of 10 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short 11 of meeting this plausibility standard. Id. Rule 12(b)(6) requires a complaint “contain 12 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 13 face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NOUREDDINE ECASALI, Case No. 24-cv-02489-BAS-JLB
12 Plaintiff, ORDER: 13 v. 1. GRANTING MOTION TO PROCEED IN FORMA 14 SCOTT MCMILLIN, et al., PAUPERIS (ECF No. 2); 15 Defendants. 2. DISMISSING THE COMPLAINT FOR FAILURE 16 TO STATE A CLAIM WITH 17 LEAVE TO AMEND; AND 3. DENYING MOTION FOR 18 APPOINTMENT OF 19 COUNSEL (ECF No. 3)
22 Plaintiff files suit against eighteen Defendants, both corporate and individual, 23 without distinguishing between Defendants, alleging violations of the Federal Fair Housing 24 Act, California Fair Housing Act, and the Fourteenth Amendment. (ECF No. 1.) 25 Simultaneously, Plaintiff files a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 26 2) and a Motion for Appointment of Counsel (ECF No. 3). 27 The Court finds Plaintiff has made a sufficient showing of poverty and GRANTS 28 the Motion to Proceed IFP. (ECF No. 2.) However, because Plaintiff has failed to allege 1 sufficient facts to state a claim, the Court DISMISSES the Complaint with leave to amend 2 and DENIES Plaintiff’s Motion for Appointment of Counsel. (ECF No. 3.) 3 I. BACKGROUND 4 Plaintiff files suit against Scott McMillin; Mark D. McMillin; C. Ann McMillin; 5 Andy McMillin; McMillin Realty, Inc.; McMillin, LLC; McMillin Home Construction, 6 Inc.; MCFT Holdings, LLC; DNMS Holdings, LLC; Central Valley Investors II, LLC; 7 Lawrence D. Crandall; Nick Crandall; Andrew Parashos; Nicole Sarber; Jennifer Nicole 8 Phillips; Torrey Pines Property Management, Inc.; Torrey Pines Repair and Construction, 9 Inc.; and Legacy Commercial Management, Inc. (ECF No. 1.) 10 According to her Complaint, “Defendants refuse to lease the unit for me because of 11 my National Origin, Religious belief—and also because I was using an Assistance Voucher 12 (Section 8).” (Id. at 2:6–8.) Plaintiff further claims Defendants “only lease to White people 13 . . . discriminating against colored people including myself.” (Id. at 2:7–10.) Finally, 14 Plaintiff alleges that to “[a]dd insult to injury[,] Defendants McMillins has just filed a 15 lawsuit against City of San Diego last September because the City is building housing for 16 Disadvantaged people by SD Airport[,] and the City has given McMillin a property worth 17 billions of Dollars for only $8.” (Id. at 2:21–26.) Plaintiff does not name any Defendants 18 individually, nor explain their role in the alleged events. Plaintiff also does not specify 19 where she wished to lease a unit, who owned that unit or how the City’s gift of property to 20 McMillin pertains to her Fair Housing Act claim. 21 II. ANALYSIS 22 A. IFP 23 Plaintiff files a Motion to Proceed IFP. (ECF No. 2.) Under 28 U.S.C. § 1915, a 24 litigant who because of indigency is unable to pay the required fees or security to 25 commence a legal action may petition the Court to proceed without making such payment. 26 The determination of indigency falls within the district court’s discretion. Cal. Men’s 27 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically requires 28 the reviewing court to exercise its sound discretion in determining whether the affiant has 1 satisfied the statute’s requirement of indigency.”), rev’d on other grounds, 506 U.S. 194 2 (1993). A party need not be completely destitute to satisfy the IFP indigency threshold. 3 See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To qualify 4 for IFP status, “an affidavit is sufficient which states that one cannot because of his ‘poverty 5 pay or give security for costs . . . and still be able to provide’ himself and dependents ‘with 6 the necessities of life.’” Id. at 339. However, “care must be employed to assure that federal 7 funds are not squandered to underwrite, at public expense, . . . the remonstrances of a suitor 8 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 9 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 10 Plaintiff lists $0 on every line of the IFP application—both income and expenses. 11 Although this might give the Court pause as to how she is subsisting, she does list 12 “CalFresh” under “food” expenses and “Medicaid” under “medical and dental” expenses. 13 (ECF No. 2 at 4 § 8.) In addition, in the Complaint, Plaintiff refers to receiving Section 8 14 housing. (ECF No. 1 at 2:4–6.) Therefore, the Court concludes Plaintiff is sufficiently 15 indigent that she is unable to pay the filing fee. 16 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP. (ECF No. 2.) 17 B. Pre-answer Screening 18 1. Legal Standard 19 Because Plaintiff is proceeding IFP, the Complaint also requires a pre-answer 20 screening pursuant to 28 U.S.C. § 1915(e)(2)(B). See Lopez v. Smith, 203 F.3d 1122, 1129 21 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) applies to all in forma pauperis complaints, 22 not just those filed by prisoners.”). Under this statute, the Court must sua sponte dismiss 23 a plaintiff’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 24 claim, or seeks damages from defendants who are immune. Id. at 1126–27 (9th Cir. 2000) 25 (discussing 28 U.S.C. § 1915(e)(2)). 26 “The standard for determining whether a plaintiff has failed to state a claim for relief 27 under which one can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as the 28 [Federal Rule of Civil Procedure (“Rule”) 12(b)(6)] standard for failure to state a claim. 1 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 2 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to 28 U.S.C. § 1915 3 “incorporates the familiar standard applied in the context of failure to state a claim under 4 [Rule] 12(b)(6)”). 5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 6 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Determining whether a complaint states a 8 plausible claim for relief [is] . . . a context-specific task that requires the reviewing court 9 to draw on its judicial experience and common sense.” Id. The “mere possibility of 10 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short 11 of meeting this plausibility standard. Id. Rule 12(b)(6) requires a complaint “contain 12 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 13 face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 14 In addition, Rule 8(a) requires that a complaint include a short and plain statement 15 of the basis for the Court’s jurisdiction, a short and plain statement of the legal claims being 16 asserted, and a demand for judgment for the relief sought. Rule 8(d)(1) requires each 17 allegation to be “simple, concise, and direct.” Rule 8 ensures that each defendant has “fair 18 notice of what the plaintiff’s claim is and the grounds upon which it rests.” Dura Pharms., 19 Inc. v. Broudo, 544 U.S. 336, 346 (2005). This rule “applies to good claims as well as 20 bad,” and it is a reason for dismissing a complaint that is independent of Rule 12(b)(6). 21 McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). 22 Undifferentiated pleading against multiple defendants is generally improper. See 23 Aaron v. Aguirre, No. 06-cv-1451-H (POR), 2007 WL 959083 at *16 n.6 (S.D. Cal. Mar. 24 8, 2017), citing In re Sagent Tech., Inc., 278 F. Supp. 2d 1079, 1094 (N.D. Cal. 2003) 25 (“[T]he complaint fails to state a claim because plaintiffs do not indicate which individual 26 defendant or defendants were responsible for which alleged wrongful act.”); Gauvin v. 27 Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988) (finding that lumping together 28 multiple defendants in one broad allegation fails to satisfy the notice requirement of Rule 1 8(a)(2)); but see Christensen v. Alorica, Inc., No. 2:20-cv-15-KJD-BNW, 2020 WL 2 9048657, at *4 (D. Nev. June 4, 2020) (finding that although “there is no blanket rule 3 against using the term ‘defendants’ to satisfy the notice pleading standards of Rule 8,” the 4 use of the global term defendants “depends on context.”) 5 As a general rule, a court freely grants leave to amend a complaint which has been 6 dismissed. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the court 7 determines that the allegation of other facts consistent with the challenged pleading could 8 not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 9 F.2d 1393, 1401 (9th Cir. 1986). 10 2. Analysis 11 Plaintiff fails to state a claim under both Rule 12(b)(6) and Rule 8. The Complaint 12 purports to be a class action lawsuit under both Federal and California Fair Housing Acts, 13 as well as the Fourteenth Amendment, against eighteen defendants, nine of whom appear 14 to be individuals. Plaintiff does not explain what role each of these Defendants had in her 15 case, nor is there any information about what class she purports to represent. There is no 16 information about where Plaintiff tried to lease a unit or why she believes the named 17 Defendants only lease to white people. Without more, Defendants do not have fair notice 18 of what Plaintiff’s claim is and what the grounds are for that claim. 19 Because the Complaint contains insufficient information about the alleged claims, 20 the Court sua sponte DISMISSES the Complaint, but will give Plaintiff the opportunity to 21 amend. Any Amended Complaint must be complete without reference to the earlier 22 Complaint. Any Defendant not listed in the Amended Complaint will be deemed dismissed 23 from the case. Plaintiff must explain in any Amended Complaint why she thinks each of 24 the listed eighteen Defendants should be held liable for her claims. 25 C. Right to Counsel 26 There is no constitutional right to counsel in a civil case. Palmer v. Valdez, 560 F.3d 27 965, 970 (9th Cir. 2009); Lassiter v. Dep’t. of Social Servs., 452 U.S. 18, 25 (1981). And 28 while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” that 1 attorney represent an indigent civil litigant, this discretion may be exercised only under 2 “exceptional circumstances.” Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 3 || (9th Cir. 2004); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding 4 || of exceptional circumstances requires the Court “to consider whether there is a ‘likelihood 5 || of success on the merits’ and whether ‘the [plaintiff] is unable to articulate [her] claims in 6 || light of the complexity of the legal issues involved.’” Harrington v. Scribner, 785 F.3d 7 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 8 As the case stands, Plaintiff has yet to demonstrate either a likelihood of success on 9 ||the merits of her claims or that their legal complexity warrants referral to potential pro 10 || bono counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 11 F.3d at 970. 12 Moreover, Plaintiff’s suit is only in its initial pleading stages; time has yet to tell 13 || whether she is likely to succeed on the merits of any claim. Id.; see also Garcia v. Smith, 14 10cv1187 AJB(RBB), 2012 WL 2499003, at *3 (S.D. Cal. June 27, 15 2012) (denying appointment of counsel where plaintiff’s complaint survived defendants’ 16 motion to dismiss pursuant to Rule 12(b)(6), but it was “too early to determine” whether 17 ||his adequately pleaded claims were likely to succeed on the merits or even survive 18 |/summary judgment). 19 CONCLUSION 20 For the above reasons, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF 21 || No. 2), but DISMISSES the Complaint without prejudice for failure to state a claim. Any 22 || Amended Complaint must be filed by March 24, 2025. Furthermore, the Court DENIES 23 || Plaintiff's Motion for Appointment of Counsel. (ECF No. 3.) 24 IT ISSO ORDERED. 25 _ 26 || DATED: March 3, 2025 yatta Bihar 17 H n. Cynthia Bashant, Chief Judge United States District Court 28 gf.