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