Marnes v. U.S. Department of Homeland Security

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Zachary MARNER, Case No.: 24-cv-1486-AGS-BJC Plaintiff, 4 ORDER GRANTING PLAINTIFF v. LEAVE TO PROCEED IN FORMA 5 PAUPERIS (ECF 2) AND U.S. DEPARTMENT OF HOMELAND 6 SCREENING AND DISMISSING SECURITY, et al., COMPLAINT (ECF 1) 7 Defendants. 8 9 Plaintiff Zachary Marner’s motion to proceed without paying the initial filing fee is 10 granted. But his complaint does not state a claim for relief, so this case is dismissed with 11 leave to amend. 12 IFP MOTION 13 Typically, parties instituting a civil action in a United States district court must pay 14 filing fees of $405.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma 15 pauperis, a plaintiff need not pay those fees. Rodriguez v. Cook, 169 F.3d 1176, 1177 16 (9th Cir. 1999). 17 Marner has checking accounts containing just over $2,100.00 total, $3,300 in cash, 18 and assets worth $83,900. (ECF 2, at 2, 4.) But Marner claims $9,162 in monthly expenses 19 compared to $3,814 in monthly income. (Id. at 2, 5.) So, plaintiff has sufficiently shown 20 an inability to pay the initial fees. See Blount v. Saul, No. 21-cv-0679-BLM, 2021 WL 21 1561453, at *1 (S.D. Cal. Apr. 21, 2021) (“It is well-settled that a party need not be 22 completely destitute to proceed IFP.”); see also Escobedo v. Applebees, 787 F.3d 1226, 23 1228 (9th Cir. 2015) (granting IFP motion when plaintiff and his spouse earned about 24 25 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, 28 1 $1,250 per month with $2,350 in monthly expenses, no savings, and additional assets 2 totaling $256,500). 3 28 U.S.C. § 1915(e) SCREENING 4 When reviewing an IFP motion, the court must screen the complaint and dismiss it 5 if it “fails to state a claim,” 28 U.S.C. § 1915(e)(2)(B), judged by the same “Federal Rule 6 of Civil Procedure 12(b)(6) standard for failure to state a claim,” Watison v. Carter, 7 668 F.3d 1108, 1112 (9th Cir. 2012). The complaint must “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 9 556 U.S. 662, 678 (2009) (quotation marks omitted). Pro se pleadings are “to be liberally 10 construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976).2 11 Marner brings three causes of action: (1) “deprivation of rights under color of law,” 12 42 U.S.C. § 1983; (2) “violation of the Civil Rights Act of 1964,” 42 U.S.C. § 2000d; and 13 (3) “breach of contract.” (ECF 1, at 2.) But under each cause of action, Marner asserts 14 vague accusations that lack connection to any tangible facts. For example, under the § 1983 15 claim, Marner declares, without further elaboration, “tax returns withheld,” “denial of valid 16 insurance claims,” and “loss of freedom.” (See ECF 1, at 2.) And for the § 2000d claim, 17 Marner says that “race, religion, appearance, . . . and sexual harassment are pressing 18 issues,” while listing unrelated crimes such as “domestic terrorism,” “witness tampering,” 19 “grand larceny,” and “racketeering.” (Id.) The grounds for the breach of contract claim are 20 likewise difficult to follow as Marner plainly asserts “Homeland Security was/is causing 21 breach of contract by not allowing work for commissions” and that the agency “stole 22 $17,200,000 from” the Internal Revenue Service and other government agencies. (Id. at 2.) 23 Even liberally construing Marner’s complaint, “[t]hese allegations are lacking in the factual 24 25 26 2 Marner appears to assert claims on behalf of himself and others. (See ECF 1-1, at 27 1.) But because he “has no authority to appear as an attorney for others than himself,” all allegations in the complaint that refer to “we” are construed as Marner’s alone. See C.E. 28 1 specificity that would allow the Court to conclude that [Marner] has plausibly alleged a 2 claim for relief.” See Marner v. Farmers Ins., No. 24-cv-1469-RSH-BLM, 2024 WL 3 4008766, at *2 (S.D. Cal. Aug. 30, 2024). 4 Attached to the complaint are about 40 pages of exhibits, most of them related to 5 insurance claims and debts. (See generally ECF 1-2.) Marner’s only explanation for these 6 documents are hand-written notes and digressions scattered throughout that indicate 7 “Homeland Security caused” an unspecified incident and “owes” money. (See, e.g., 8 ECF 1-2, at 19–21.) In sum, the complaint is nearly impossible to discern and is far from 9 simple, concise, and direct, so dismissal is warranted. See United States ex rel. Cafasso v. 10 General Dynamics C4 Sys., 637 F.3d 1047, 1059 (9th Cir. 2011) (collecting cases 11 upholding dismissals of pleadings that were “confusing,” “distracting, ambiguous,” 12 “unintelligible,” and “highly repetitious”). But the Court grants him an opportunity to 13 amend his pleading because it is not “absolutely clear that the deficiencies of the complaint 14 could not be cured by amendment.” See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 15 2015) (cleaned up). 16 MOTION TO APPOINT COUNSEL 17 Marner requests that the Court “appoint counsel.” (ECF 1, at 3.) For such an 18 appointment, a civil plaintiff must show “exceptional circumstances.” Terrell v. Brewer, 19 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an 20 evaluation of both the likelihood of success on the merits and the ability of the petitioner 21 to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. 22 (cleaned up). “These considerations are not separate and distinct from the underlying 23 claim[s], but are inextricably enmeshed with them.” Weygandt v. Look, 718 F.2d 952, 954 24 (9th Cir. 1983). Thus, because Marner “failed to state a cognizable civil rights claim, the 25 court is unable to determine whether plaintiff’s underlying claims have merit,” and thus, 26 “appointment of counsel is premature.” See Fuller v. Houston, No. EDCV 21-00127 JGB 27 (AS), 2022 WL 225671, at *2 (C.D. Cal. Jan. 25, 2022) (collecting cases). 28 I CONCLUSION 2 Marner’s IFP motion is GRANTED, and his request for appointment of counsel is 3 DENIED without prejudice. The complaint is DISMISSED with leave to amend. By 4 || December 27, 2024, Marner must file any amended complaint, remedying the identified 5 || deficiencies. If he fails to do so by that date, the Court may enter a final order dismissing 6 || this case, based both on his failure to state a claim and his failure to prosecute in compliance 7 a court order requiring amendment. “If a plaintiff does not take advantage of the 8 || opportunity to fix his complaint, a district court may convert the dismissal of the complaint 9 dismissal of the entire action.” Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). 10 Dated: December 13, 2024 11 A fl 12 Andre Schopler United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28