1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AGNES GEORGES Case No.: 21cv2095-LAB (WVG)
12 Plaintiff, ORDER: 13 v. 1) GRANTING MOTION TO PROCEED IN FORMA 14 FELIX PHILLIP PAUPERIS (DKT. 2); 15 Defendant. 2) DENYING APPOINTMENT OF COUNSEL (DKT. 3); AND 16 3) DISMISSING COMPLAINT 17 (DKT. 1)
19 Plaintiff Agnes Georges, proceeding pro se, filed her Complaint against 20 Defendant Felix Phillip on December 16, 2021. (Dkt. 1). She attempts to bring a 21 Fourteenth Amendment claim against Phillip, a Drug Enforcement Administration 22 (“DEA”) agent, because he allegedly stole her ID in 2008. The circumstances 23 underlying her constitutional claim are unclear, and the relief she seeks is either 24 incomprehensible or impermissible. 25 Georges did not pay the statutory and administrative civil filing fees required 26 by 28 U.S.C. § 1914(a). Instead, Georges seeks leave to proceed in forma 27 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Dkt. 2). She also requests that 28 the Court appoint her an attorney because she can’t afford one. (Dkt. 3). For the 1 following reasons, the Court GRANTS her IFP motion, DENIES her request for the 2 appointment of counsel, and DISMISSES her complaint without prejudice. 3 I. Plaintiff’s Motion to Proceed IFP 4 All parties instituting any civil action, suit, or proceeding in a district court of 5 the United States, except for an application for writ of habeas corpus, must pay a 6 filing fee of $400.1 See 28 U.S.C. § 1914(a). But a litigant who, because of 7 indigency, is unable to pay the required fees or security may petition the Court to 8 proceed without making such payment. 28 U.S.C. § 1915(a). The facts of an 9 affidavit of poverty must be stated with some particularity, definiteness, and 10 certainty. Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing 11 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). 12 The determination of indigency falls within the district court’s discretion. 13 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d, 506 14 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to exercise 15 its sound discretion in determining whether the affiant has satisfied the statute’s 16 requirement of indigency.”). It is well-settled that a party need not be completely 17 destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 18 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), 19 “an affidavit [of poverty] is sufficient which states that one cannot because of his 20 poverty pay or give security for costs . . . and still be able to provide himself and 21 dependents with the necessities of life.” Id. at 339. At the same time, however, “the 22 same even-handed care must be employed to assure that federal funds are not 23 squandered to underwrite, at public expense, . . . the remonstrances of a suitor 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional 28 1 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 2 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Courts tend to reject IFP motions 3 where the applicant can pay the filing fee with acceptable sacrifice to other 4 expenses. See, e.g., Allen v. Kelly, 1995 WL 396860 at *3–4 (N.D. Cal. 1995) 5 (granting plaintiff IFP status but later requiring plaintiff to pay $120 filing fee out of 6 $900 settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) 7 (denying IFP application where “plaintiff possessed savings of $450 and the 8 magistrate correctly determined that this amount was more than sufficient to allow 9 the plaintiff to pay the filing fee in this action”). 10 Having read and considered the papers submitted, the Court finds that 11 Georges meets the requirements for IFP status under 28 U.S.C. § 1915. Her IFP 12 motion is in the form of a standard questionnaire, which indicates that she is 13 unemployed, has no ascertainable assets,2 and has no direct source of income 14 other than $850 in monthly disability payments. (Dkt. 2). She states that she has 15 expenses related to doctors’ visits, medicine, and exams, and that she additionally 16 pays her son’s rent. (Id. at 5). It is clear that Georges has only modest assets and 17 no disposable income that she could use to pay the filing fee. The Court therefore 18 concludes that she is unable to pay the filing fee and GRANTS her IFP motion. 19 II. Motion for Appointment of Counsel 20 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resol. 21 Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, federal courts do not have the 22 authority “to make coercive appointments of counsel.” Mallard v. U.S. Dist. Ct. for 23 S. Dist. of Iowa, 490 U.S. 296, 309 (1989); see also United States v. $292,888.04 24 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts have discretion, 25 however, pursuant to 28 U.S.C. § 1915(e)(1) to “request” that an attorney 26 27 2 Georges vaguely states that she has “assets in Haiti not United State[s],” but she 28 1 represent indigent civil litigants upon a showing of “exceptional circumstances.” 2 See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 3 2004); accord Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). “A finding of 4 the exceptional circumstances of the plaintiff seeking assistance requires at least 5 an evaluation of the likelihood of the plaintiff’s success on the merits and an 6 evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity 7 of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. 8 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 9 F.2d 1015, 1017 (9th Cir. 1991). 10 Here, Plaintiff seeks an appointment of counsel because she is unemployed 11 and has no income other than $850 per month, yet her expenses total nearly 12 $1000. (Dkt. 3 ¶¶ 10–12). Thus, she reports that she is unable to afford counsel. 13 (Id. at 2–3).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AGNES GEORGES Case No.: 21cv2095-LAB (WVG)
12 Plaintiff, ORDER: 13 v. 1) GRANTING MOTION TO PROCEED IN FORMA 14 FELIX PHILLIP PAUPERIS (DKT. 2); 15 Defendant. 2) DENYING APPOINTMENT OF COUNSEL (DKT. 3); AND 16 3) DISMISSING COMPLAINT 17 (DKT. 1)
19 Plaintiff Agnes Georges, proceeding pro se, filed her Complaint against 20 Defendant Felix Phillip on December 16, 2021. (Dkt. 1). She attempts to bring a 21 Fourteenth Amendment claim against Phillip, a Drug Enforcement Administration 22 (“DEA”) agent, because he allegedly stole her ID in 2008. The circumstances 23 underlying her constitutional claim are unclear, and the relief she seeks is either 24 incomprehensible or impermissible. 25 Georges did not pay the statutory and administrative civil filing fees required 26 by 28 U.S.C. § 1914(a). Instead, Georges seeks leave to proceed in forma 27 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Dkt. 2). She also requests that 28 the Court appoint her an attorney because she can’t afford one. (Dkt. 3). For the 1 following reasons, the Court GRANTS her IFP motion, DENIES her request for the 2 appointment of counsel, and DISMISSES her complaint without prejudice. 3 I. Plaintiff’s Motion to Proceed IFP 4 All parties instituting any civil action, suit, or proceeding in a district court of 5 the United States, except for an application for writ of habeas corpus, must pay a 6 filing fee of $400.1 See 28 U.S.C. § 1914(a). But a litigant who, because of 7 indigency, is unable to pay the required fees or security may petition the Court to 8 proceed without making such payment. 28 U.S.C. § 1915(a). The facts of an 9 affidavit of poverty must be stated with some particularity, definiteness, and 10 certainty. Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing 11 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). 12 The determination of indigency falls within the district court’s discretion. 13 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d, 506 14 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to exercise 15 its sound discretion in determining whether the affiant has satisfied the statute’s 16 requirement of indigency.”). It is well-settled that a party need not be completely 17 destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 18 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), 19 “an affidavit [of poverty] is sufficient which states that one cannot because of his 20 poverty pay or give security for costs . . . and still be able to provide himself and 21 dependents with the necessities of life.” Id. at 339. At the same time, however, “the 22 same even-handed care must be employed to assure that federal funds are not 23 squandered to underwrite, at public expense, . . . the remonstrances of a suitor 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional 28 1 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 2 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Courts tend to reject IFP motions 3 where the applicant can pay the filing fee with acceptable sacrifice to other 4 expenses. See, e.g., Allen v. Kelly, 1995 WL 396860 at *3–4 (N.D. Cal. 1995) 5 (granting plaintiff IFP status but later requiring plaintiff to pay $120 filing fee out of 6 $900 settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) 7 (denying IFP application where “plaintiff possessed savings of $450 and the 8 magistrate correctly determined that this amount was more than sufficient to allow 9 the plaintiff to pay the filing fee in this action”). 10 Having read and considered the papers submitted, the Court finds that 11 Georges meets the requirements for IFP status under 28 U.S.C. § 1915. Her IFP 12 motion is in the form of a standard questionnaire, which indicates that she is 13 unemployed, has no ascertainable assets,2 and has no direct source of income 14 other than $850 in monthly disability payments. (Dkt. 2). She states that she has 15 expenses related to doctors’ visits, medicine, and exams, and that she additionally 16 pays her son’s rent. (Id. at 5). It is clear that Georges has only modest assets and 17 no disposable income that she could use to pay the filing fee. The Court therefore 18 concludes that she is unable to pay the filing fee and GRANTS her IFP motion. 19 II. Motion for Appointment of Counsel 20 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resol. 21 Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, federal courts do not have the 22 authority “to make coercive appointments of counsel.” Mallard v. U.S. Dist. Ct. for 23 S. Dist. of Iowa, 490 U.S. 296, 309 (1989); see also United States v. $292,888.04 24 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts have discretion, 25 however, pursuant to 28 U.S.C. § 1915(e)(1) to “request” that an attorney 26 27 2 Georges vaguely states that she has “assets in Haiti not United State[s],” but she 28 1 represent indigent civil litigants upon a showing of “exceptional circumstances.” 2 See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 3 2004); accord Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). “A finding of 4 the exceptional circumstances of the plaintiff seeking assistance requires at least 5 an evaluation of the likelihood of the plaintiff’s success on the merits and an 6 evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity 7 of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. 8 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 9 F.2d 1015, 1017 (9th Cir. 1991). 10 Here, Plaintiff seeks an appointment of counsel because she is unemployed 11 and has no income other than $850 per month, yet her expenses total nearly 12 $1000. (Dkt. 3 ¶¶ 10–12). Thus, she reports that she is unable to afford counsel. 13 (Id. at 2–3). However, the circumstances described fail to demonstrate 14 “exceptional circumstances” warranting the appointment of counsel, particularly in 15 light of Georges’s pleading failures described in the subsequent section. See 16 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2004). Therefore, the Court DENIES 17 WITHOUT PREJUDICE George’s motion for appointment of counsel. (Dkt. 3). 18 III. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) 19 Any complaint filed by a person proceeding IFP is subject to sua sponte 20 dismissal by the Court to the extent it contains claims which are “frivolous, 21 malicious, fail to state a claim upon which relief may be granted, or seek monetary 22 relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); 23 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the 24 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v. 25 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only 26 permits, but requires a district court to dismiss an in forma pauperis complaint that 27 fails to state a claim.”). 28 All complaints must contain “a short and plain statement of the claim showing 1 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual 2 allegations are not required, but “[t]hreadbare recitals of the elements of a cause 3 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 4 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 5 544, 555 (2007)). “When there are well-pleaded factual allegations, a court should 6 assume their veracity, and then determine whether they plausibly give rise to an 7 entitlement to relief.” Iqbal, 556 U.S. at 679; see also Barren v. Harrington, 152 8 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the language 9 of Federal Rule of Civil Procedure 12(b)(6)”). However, while the court has an 10 “obligation . . . where the petitioner is pro se, particularly in civil rights cases, to 11 construe the pleadings liberally and to afford the petitioner the benefit of any 12 doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 13 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)), it may not, in so doing, “supply 14 essential elements of the claim that were not initially pled.” Ivey v. Board of 15 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 16 The Court finds that Georges’s Complaint plainly fails to articulate a 17 cognizable basis for granting the relief that she requests and/or seeks 18 impermissible forms of relief. The Complaint doesn’t delineate her different causes 19 of action—to the extent there are any—but instead makes a mere mention of the 20 Fourteenth Amendment without any further discussion of the exact nature of her 21 claim. The only wrongdoing that can be ascertained by the Court is the alleged 22 deprivation of Georges’s ID in 2008, though it is unclear why or how it was taken 23 from her, how long she was deprived of it, under what circumstances it was taken 24 from her, and whether and how this caused her injury. Although the Complaint 25 alludes to the Fourteenth Amendment, it does not clearly identify specifically what 26 facts exist to support the elements of her claim or the basis for her suit against 27 Phillip. Moreover, the relief she requests is either incomprehensible, or 28 impermissible, such as her requests that the Court “revise [her] new passport” or 1 ||that she be informed “how someone can use his powerful [sic] to do all of these 2 ||crime[s] on a victim without a court order.” (Dkt. 1 at 3). 3 “[O]ne cannot determine from the complaint who is being sued, for what 4 relief, and on what theory, with enough detail to guide discovery.” See McHenry v. 5 || Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As a result, George’s Complaint falls 6 ||short of providing the short and plain statement required by Rule 8, fails to state a 7 ||claim for relief, and must be dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii). 8 IV. CONCLUSION AND ORDER 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 1. Plaintiff's Motion to Proceed IFP (Dkt. 2) is GRANTED. However, if 11 Plaintiff ultimately succeeds in this case, whether at trial or through a settlement, 12 Plaintiff shall be required to pay the costs of this litigation. 13 2. Plaintiff's request for the appointment of counsel (Dkt. 3) is DENIED 14 || without prejudice. 15 3. Plaintiff's Complaint (Dkt. 1) is DISMISSED without prejudice for failing 16 ||to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b). However, Plaintiff is 17 GRANTED forty-five (45) days leave from the date of this Order in which to file an 18 ||Amended Complaint which cures the deficiencies of pleading identified herein. 19 || Plaintiff's Amended Complaint must be complete in itself without reference to her 20 |loriginal pleading. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & 21 Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 22 ||supersedes the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 23 (citation omitted) (“All causes of action alleged in an original complaint which are 24 alleged in an amended complaint are waived.”). 25 IT IS SO ORDERED. 26 ||Dated: December 29, 2021 lau A. (Buywy 27 Honorable Larry Alan Burns 28 United States District Judge