Kirkpatrick v. San Diego Police

• Court: District Court, S.D. California
• Decided: May 30, 2023
• Docket: 3:23-cv-00762
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 SHLYNN KIRKPATRICK, Case No.: 23-cv-762-GPC-KSC

11 Plaintiff, ORDER 12 v. (1) DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA 13 SAN DIEGO POLICE, PAUPERIS; 14 Defendant. [ECF No. 2] (2) SUA SPONTE DISMISSING 15 PLAINTIFF’S COMPLAINT FOR 16 FAILURE TO STATE A CLAIM; (3) DENYING PLAINTIFF’S 17 REQUEST FOR APPOINTMENT OF 18 COUNSEL [ECF No. 3] 19

20 Plaintiff Shlynn Kirkpatrick, proceeding pro se, filed a complaint against 21 Defendant San Diego Police. ECF No. 1. Kirkpatrick also filed an application to 22 proceed in forma pauperis (“IFP”), ECF No. 2, and a request for appointment of counsel, 23 ECF No. 3. Based on the reasoning below, the Court DENIES Plaintiff’s motion to 24 proceed in forma pauperis; DENIES Plaintiff’s motion for appointment of counsel, and 25 sua sponte DISMISSES the action for failure to state a claim. The Court GRANTS 26 Plaintiff leave to amend their complaint, motion to proceed IFP, and request for 27 appointment of counsel. 28 1 2 A. Motion To Proceed In Forma Pauperis 3 All parties instituting any civil action, suit, or proceeding in a district court of the 4 United States, except on application for writ of habeas corpus, must pay a filing fee of 5 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 7 section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 8 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an 9 affidavit demonstrating their inability to pay the filing fee, and the affidavit must include 10 a complete statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1); Escobedo v. 11 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (demonstrating the statute’s applicability 12 to non-prisoner plaintiffs). “An affidavit in support of an IFP application is sufficient 13 where it alleges that the affiant cannot pay the court costs and still afford the necessities 14 of life.” Id. at 1234; accord Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. 331, 339 15 (1948). “[T]he Court may, in its discretion, impose a partial filing fee which is less than 16 the full filing fee that is required by law, but which is commensurate with the applicant’s 17 ability to pay.” Civ. L. R. 3.2.e. 18 Here, Kirkpatrick submitted an incomplete IFP application. Regarding monthly 19 income, Kirkpatrick first records an average monthly income of $2,300 during the past 20 twelve months, stemming entirely from employment. ECF No. 2 at 1–2. 2 However, 21 Kirkpatrick then lists only one employer in the section for employment history, from 22 whom Kirkpatrick purportedly receives a gross monthly pay of $1,200. Id. at 1–2. 23 24 25 26 1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of 27 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not 28 apply to persons granted leave to proceed IFP. Id. 1 Kirkpatrick did not complete the other eleven rows of possible income sources. 2 Kirkpatrick stated that there is roughly $1,000 in their checking account. Id. at 2. 3 Kirkpatrick left the asset and expense portions of the IFP application blank. Id. at 3–4. 4 However, Kirkpatrick reported a monthly living expense of $300 to $400 dollars in their 5 Affidavit in support of their request for Counsel.4 ECF No. 3 at 6. In the same Affidavit, 6 Kirkpatrick indicated that they owed $5300 in debts, but did not indicate whether they are 7 making monthly payments to satisfy those debts. ECF No. 3 at 6. Kirkpatrick 8 additionally states that they cannot pay the cost of the proceeding because they are “not 9 liable/the victim.” ECF No. 2 at 5. 10 Kirkpatrick’s IFP application is incomplete and inconclusive. Kirkpatrick’s filings 11 offer several conflicting statements and omissions regarding their finances: (1) their 12 reported average monthly income for the past 12 months is $2300, and yet their only 13 listed employment for the past two years began in February 2023 with a gross pay of 14 $1200 per month, ECF No. 2 at 1–2; and (2) despite leaving the monthly expenses 15 section on the IFP application entirely blank, id. at 4, Kirkpatrick’s Request for Counsel 16 affidavit suggests that their living expenses range from $300 to $400 per month, ECF 17 No. 3 at 6. Taking Kirkpatrick’s lowest reported monthly salary and highest reported 18 monthly expenses suggests that their monthly income exceeds monthly expenses by at 19 least $800.5 This suggests that Kirkpatrick could afford at least a partial filing fee 20 without risking the ability to afford the necessities of life. See Escobedo, 787 F.3d at 21 1235. Kirkpatrick’s explanation that as a non-liable victim they cannot pay the filing fee 22 does not offer any additional relevant information for the Court to evaluate their ability to 23

24 3 The application to proceed IFP instructs the plaintiff to “[c]omplete all questions in this application” 25 and to “not leave any blanks: if the answer to a question is ‘0,’ ‘none,’ or ‘not applicable (N/A),’ write that response.” ECF No. 2 at 1. 26 4 This monetary estimation is followed by a list which reads: “insurance (car), gas, etc.” ECF No. 3 at 6. It is unclear if Kirkpatrick intended for this list to explain where the estimated amount of money was 27 used, or to be considered in addition to the estimated monthly living expenses. 28 5 The lowest reported gross monthly pay from employment ($1,200) minus the upper end of estimated 1 pay the filing fee. 2 Because Kirkpatrick did not properly complete the IFP application and because the 3 information they provided suggests they could pay at least a partial filing fee, 4 Kirkpatrick’s application to proceed in forma pauperis is DENIED with leave to amend. 5 If Kirkpatrick intends to proceed in this matter, they should either pay the filing fee in its 6 entirety or submit a new—and complete—IFP application within 30 days of the date of 7 this Order. 8 B. Sua Sponte Dismissal Pursuant To 28 U.S.C. § 1915(e)(2) 9 1. Legal standards 10 A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is 11 subject to mandatory sua sponte review and dismissal by the Court if it is “(i) frivolous, 12 or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks 13 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 14 § 1915(e)(2)(B); see Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 15 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 16 Under Federal Rule of Civil Procedure (“Rule”) 8(a), “a pleading that states a 17 claim for relief must contain . . . a short and plain statement of the claim . . . [and] a 18 demand for the relief sought, which may include relief in the alternative or different types 19 of relief.” Fed. R. Civ. P. 8(a). A complaint should “set[] forth who is being sued, for 20 what relief, and on what theory.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996); 21 see also Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000) (“To comply 22 with Rule 8 each plaintiff must plead a short and plain statement of the elements of his or 23 her claim, identifying the transaction or occurrence giving rise to the claim and the 24 elements of the prima facie case . . . .”). 25 The federal court is one of limited jurisdiction and the burden rests on the party 26 asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 27 The federal court possesses only that power authorized by the Constitution or a statute. 28 See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The court is 1 constitutionally required to raise issues related to federal subject matter jurisdiction and 2 may do so sua sponte. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–94 3 (1998); see Nevada v. Bank of Am. Corp., 672 F.3d 661, 673 (9th Cir. 2012) (“[I]t is well 4 established that ‘a court may raise the question of subject matter jurisdiction, sua sponte, 5 at any time during the pendency of the action, even on appeal.’” (quoting Snell v. 6 Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002)). Accordingly, federal courts are 7 under a continuing duty to confirm their jurisdictional power and are “obliged to inquire 8 sua sponte whenever a doubt arises as to [its] existence . . . .” Mt. Healthy City Sch. Dist. 9 Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations omitted). “If the court 10 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 11 action.” Fed. R. Civ. P. 12(h)(3). 12 There are two bases for federal subject matter jurisdiction: (1) federal question 13 jurisdiction under 28 U.S.C. § 1331; and (2) diversity jurisdiction under 28 U.S.C. 14 § 1332. A district court has federal question jurisdiction in “all civil actions arising under 15 the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal 16 question jurisdiction exists only when a federal question is presented on the face of the 17 plaintiff’s well-pleaded complaint. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 18 (2004); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). A district court has 19 diversity jurisdiction “where the matter in controversy exceeds the sum or value of 20 $75,000, . . . . and is between . . . citizens of different states, or citizens of a State and 21 citizens or subjects of a foreign state.” 28 U.S.C. § 1332(a)(1)-(2). 22 Courts “liberally construe[]” pro se claims, Estelle v. Gamble, 429 U.S. 97, 106 23 (1976), and hold them to “less stringent standards than formal pleadings drafted by 24 lawyers,” id. (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). “This rule is 25 particularly important in civil rights cases.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th 26 Cir. 1987). 27 2. Discussion 28 Kirkpatrick’s complaint appears to concern a cyber security breach on their 1 personal devices. The complaint alleges that there had been “13 accounts of breaching 2 online and account information, and uploading photos to [their] iCloud.” ECF No. 1 at 2. 3 Kirkpatrick’s Instagram account allegedly has been “hacked and a photo got deleted.” Id. 4 The complaint further alleges that some passwords have been changed and “photos have 5 been viewed.” Id. Kirkpatrick alleges that at least some portion of these events occurred 6 via their iPhone. Id. Kirkpatrick alleges that these events were “traumatizing” and that 7 “[e]verything can be viewed.” Id. The complaint does not name any defendant, does not 8 specify who may be responsible, and does not explain how these events give rise to a 9 cause of action.6 See id. Kirkpatrick left the entire “relief you request” portion of the 10 complaint blank.7 Id. at 3. 11 Kirkpatrick’s complaint does not sufficiently allege a cause of action upon which 12 relief may be granted. The Court finds that Kirkpatrick’s complaint does not sufficiently 13 explain how Defendant San Diego Police is involved, what the defendant did, and what 14 relief Kirkpatrick seeks. As pled, Kirkpatrick’s claim does not satisfy the pleading 15 standard under Rule 8 of the Federal Rules of Civil Procedure. Furthermore, it is unclear 16 whether the Court has subject matter jurisdiction over this action. See 28 U.S.C. § 1331 17 (federal question jurisdiction), 28 U.S.C. § 1332 (diversity jurisdiction). Kirkpatrick has 18 not provided any information suggesting that there is a diversity of citizenship between 19 the parties, and because they did not demand any relief, there exists no amount in 20 controversy. Neither does Kirkpatrick point to any constitutional provisions or federal 21 statutes that would implicate a federal question. Accordingly, Kirkpatrick’s complaint is 22 DISMISSED with leave to amend. If Kirkpatrick intends to proceed in this matter, they 23 should submit an amended complaint within 30 days of the date of this Order. The 24 amended complaint should clearly explain what the defendant did to give rise to this 25 26 6 The Pro Se Complaint form instructs that a plaintiff should: “[d]escribe how each defendant is involved, and tell what each defendant did to you that caused you to file this suit against them.” ECF 27 No. 1 at 1. 28 7 The Pro Se Complaint form instructs that a plaintiff should: “[s]tate exactly what you want the court to 1 claim and what relief is requested. 2 C. Request For Appointment Of Counsel 3 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resol. Tr. 4 Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, under 28 U.S.C. § 1915(e)(1), 5 courts are afforded discretion to appoint counsel for “any person unable to afford 6 counsel.” 28 U.S.C.A. § 1915(e)(1). The appointment of counsel requires “exceptional 7 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); accord Wilborn 8 v. Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986). “A finding of exceptional 9 circumstances requires an evaluation of both ‘the likelihood of success on the merits and 10 the ability of the petitioner to articulate his claims pro se in light of the complexity of the 11 legal issues involved.’ ” Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331). 12 Neither factor “is dispositive and both must be viewed together before reaching a 13 decision.” Id. (quoting Wilborn, 789 F.2d at 1331). Indigent plaintiffs are required to 14 “make a reasonably diligent effort to secure counsel as a prerequisite to the court’s 15 appointing counsel for them.” Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 16 1993); accord Skelly v. U.S. Dep’t of Educ., No. 19-cv-1812-GPC-BLM, 2019 WL 17 6840398, at *5 (S.D. Cal. Dec. 16, 2019) 18 Here, Kirkpatrick left most of the application for counsel blank. See ECF No. 3 19 at 1–3. Kirkpatrick does not list any attorney they contacted, nor do they offer any 20 explanation for why assistance from counsel is needed. Id. at 2–3. 21 Kirkpatrick’s Request for Appointment of Counsel application is incomplete and 22 inconclusive. As discussed above, the Court finds that Kirkpatrick’s financial 23 circumstance does not clearly establish their indigency. See ECF No. 2, at 1–5; ECF No. 24 3 at 4–6. Moreover, Kirkpatrick does not meet their burden of using reasonable diligence 25 to secure counsel. See ECF No. 3 at 2. Due to the incomplete application and complaint, 26 it is unclear whether Kirkpatrick’s circumstances are “exceptional” such that there is a 27 likelihood of success on the merits and that counsel would be necessary to help 28 Kirkpatrick articulate their claims. See, e.g., Cavazos v. Garilaso, No. 3:21-cv-01156- 1 JAH-LR, 2023 WL 2702565, at *1 (S.D. Cal. Mar. 29, 2023) (denying counsel 2 appointment despite claimant’s “poor mental health, . . . limited library access, and 3 limited time to prepare . . . case”); Skelly, 2019 WL 6840398, at *5 (denying counsel 4 appointment despite plaintiff receiving IFP and demonstrating reasonably diligent effort 5 to obtain counsel). Furthermore, as discussed above, Kirkpatrick’s cause or causes of 6 action are unclear and thus the Court cannot fully evaluate the complexity of the legal 7 issues involved nor the likelihood of success on the merits. Accordingly, the Court 8 concludes the circumstances do not support appointment of counsel at this stage of the 9 proceedings. Kirkpatrick’s request for appointment of counsel is DENIED. 10 D. Leave To Amend 11 District courts “should not dismiss a pro se complaint without leave to amend 12 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 13 amendment.’ ” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. 14 Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988)). 15 The Court GRANTS Kirkpatrick LEAVE TO AMEND their motion to proceed in 16 forma pauperis, their Complaint, and their request for appointment of counsel. If 17 Kirkpatrick would like to proceed in this matter, they must file an amended complaint 18 within 30 days of the date of this Order. The Amended Complaint must be complete by 19 itself without reference to their previous pleading. See Civ. L. Rule 15.1(a). The 20 amended complaint should clearly state the causes of action upon which Kirkpatrick’s 21 claims are based—e.g. any statutory or constitutional violation—and by what means— 22 federal question or diversity of citizenship—the Court has subject matter jurisdiction over 23 this proceeding. Any amended complaint must be accompanied either by the $402 filing 24 fee or a completed, amended IFP application addressing the deficiencies discussed above. 25 If Kirkpatrick fails to timely amend, the Court will enter a final Order dismissing 26 the entire action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 27 does not take advantage of the opportunity to fix his complaint, a district court may 28 convert the dismissal of the complaint into dismissal of the entire action.”). 1 Conclusion 2 For the reasons explained above, the Court DENIES Kirkpatrick’s request to 3 proceed in forma pauperis; sua sponte dismisses their complaint for failure to state a 4 ||claim upon which relief may be granted; and DENIES their request for appointment of 5 |}counsel. The Court GRANTS Kirkpatrick leave to amend their motion to proceed in 6 || forma pauperis, their Complaint, and their request for appointment of counsel within 7 ||30 days of the date of this Order. 8 IT IS SO ORDERED. 9 || Dated: May 30, 2023 2 10 Hon. athe Coke 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28