Gonzalez v. U.S. Customs and Border Protection

• Court: District Court, S.D. California
• Decided: September 14, 2021
• Docket: 3:21-cv-01558
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDRES RODRIGUEZ GONZALEZ, Case No.: 21-CV-1558 TWR (DEB)

12 Plaintiff, ORDER (1) DENYING WITHOUT 13 v. PREJUDICE MOTION TO PROCEED IN FORMA PAUPERIS, 14 U.S. CUSTOMS AND BORDER AND (2) DENYING WITHOUT PROTECTION, 15 PREJUDICE MOTION FOR Defendant. APPOINTMENT OF COUNSEL 16

17 (ECF Nos. 2, 3)

18 Presently before the Court are Plaintiff Andres Rodriguez Gonzalez’s Motions to 19 Proceed in Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2) and for Appointment of 20 Counsel (“Counsel Mot.,” ECF No. 3). For the reasons explained below, the Court 21 DENIES WITHOUT PREJUDICE both Motions. 22 MOTION TO PROCEED IN FORMA PAUPERIS 23 Plaintiff requests leave to proceed IFP, claiming that his “monthly expenses absorb 24 all [his] money” and that he “recently had a bout of illness and cannot afford [his] 25 medical/dental care and to pay attorney fees.” (See IFP Mot. at 5.) A motion to proceed 26 IFP must be accompanied by an affidavit executed under penalty of perjury 27 demonstrating that the movant is unable to pay the initial fees or give security. See 28 28 1 U.S.C. § 1915(a)(1); see also S.D. Cal. CivLR 3.2(a) (“All actions sought to be filed in 2 forma pauperis . . . must be accompanied by an affidavit that includes a statement of all 3 assets [that] shows inability to pay initial fees or give security . . . executed under penalty 4 of perjury.”). 5 Although Plaintiff submitted a completed application and appears to qualify for 6 IFP status, (see generally IFP Mot.), Plaintiff neglected to sign his affidavit under penalty 7 of perjury. (See id. at 1.) The Court therefore DENIES WITHOUT PREJUDICE 8 Plaintiff’s Motion to Proceed IFP (ECF No. 2). See, e.g., Williams v. Pierce Cty. Bd. of 9 Comm’rs, 267 F.2d 866, 867 (9th Cir. 1959) (affirming denial of IFP motion where the 10 plaintiff failed to include the required affidavit); Hunter v. Three Unknown Named DMV 11 John Doe Emps., No. 1:19-CV-00206-DCN, 2019 WL 4308534, at *1 (D. Idaho Sept. 11, 12 2019) (citing 28 U.S.C. § 1746) (denying without prejudice IFP motion because the 13 plaintiff’s “statement fails to qualify as a legal affidavit as he does not swear or affirm 14 under penalty of perjury that what he states is true”); Feldman v. Cal. DMV, No. 15 CIVS071296MCEDADPS, 2007 WL 2120616, at *1 (E.D. Cal. July 23, 2007) (citing 28 16 U.S.C. § 1915(a)) (denying without prejudice IFP motion that was not signed under 17 penalty of perjury). 18 MOTION FOR APPOINTMENT OF COUNSEL 19 Plaintiff also requests that the Court appoint him counsel because he has “limited 20 income and cannot afford to pay any attorney fees or court costs.” (Counsel Mot. at 3.) 21 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 22 965, 970 (9th Cir. 2009). But under 28 U.S.C. § 1915(e)(1), a court may “appoint 23 counsel for indigent civil litigants” based on a showing of “exceptional circumstances.” 24 Id. (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.2004), cert. 25 denied, 545 U.S. 1128 (2005)). In determining whether exceptional circumstances exist, 26 the court considers (1) the “likelihood of success on the merits” and (2) “the ability of the 27 petitioner to articulate his claims pro se in light of the complexity of the legal issues 28 involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983 1 Because the Court has denied without prejudice Plaintiffs’ IFP Motion, see supra, 2 ||the Court has not yet had the opportunity to determine that Plaintiff is indigent or to 3 ||screen Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2). Consequently, “it is 4 ||impossible to determine [Plaintiff]’s likelihood of success on the merits of his claims or 5 ||whether there are exceptional circumstances that justify the appointment of counsel 6 ||here.” See Scaperotta v. Kauai Cmty. Corr. Ctr., No. CV 21-00085 DK W-RT, 2021 WL 7 || 1084769, at *1 (D. Haw. Feb. 12, 2021) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 8 ||(9th Cir. 1991)). The Court therefore DENIES WITHOUT PREJUDICE □□□□□□□□□□□ 9 || Motion for Appointment of Counsel (ECF No. 3). 10 CONCLUSION 11 In light of the foregoing, the Court DENIES WITHOUT PREJUDICE □□□□□□□□□□□ 12 ||Motions to Proceed IFP (ECF No. 2) and for Appointment of Counsel (ECF No. 3). 13 || Within thirty (30) days from the date of this Order, Plaintiff may either (1) pay the entire 14 statutory and administrative filing fee, or (2) file a new and complete IFP Motion 15 || using form AO 239 that is signed under penalty of perjury. Should Plaintiff fail timely to 16 || pay the filing fee or move to proceed IFP, this action will be dismissed without prejudice. 17 IT IS SO ORDERED. 18 Dated: September 13, 2021 Seems [59 bie Honorable Todd W. Robinson 21 United States District Court 22 23 24 25 26 27 28