Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Christin POWERS, Case No.: 26-cv-2999-AGS-GC 4 ORDER GRANTING MOTION TO Plaintiff, 5 PROCEED IN FORMA PAUPERIS v. (ECF 2), DENYING MOTION FOR 6 APPOINTED COUNSEL (ECF 3), 7 AND DISMISSING COMPLAINT THE VOLKSWAGEN GROUP, WITH LEAVE TO AMEND 8 Defendant. 9 Plaintiff Christin Powers, proceeding without an attorney, is suing The Volkswagen 10 Group for allegedly repossessing her car. She also requests to proceed in forma pauperis, 11 that is, without paying the court’s filing fees. And she wants an appointed attorney. As 12 explained below, her IFP application is granted. But her complaint does not survive 13 mandatory screening, and her request for counsel fails. 14 DISCUSSION 15 A. IFP Application and Request to Appoint Counsel 16 Parties instituting civil actions in United States district courts must pay $405 in filing 17 fees. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. 18 Fee Schedule, § 14 (eff. Dec. 1, 2023). But plaintiffs granted the right to proceed IFP need 19 not pay those fees. Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 20 Powers’s application states that she receives only “2,040” dollars a month in alimony 21 payments, has less than a dollar cash on hand, savings of less than five dollars, and 22 otherwise owns only the repossessed Volkswagen Atlas which she still owes “~$15,000” 23 on. (ECF 2, at 1–3.) She totals monthly expenses at more than her monthly income. (Id. at 24 4–5.) She also estimates potential payouts on some of her other pending suits, but so far 25 none of those have yielded returns. (Id. at 3.) Regardless, paying the filing fee would result 26 in an undue hardship on plaintiff, and as “a party need not be completely destitute to 27 28 1 proceed IFP,” the motion is granted. See Blount v. Saul, No. 21-CV-0679-BLM, 2021 WL 2 1561453, at *1 (S.D. Cal. Apr. 21, 2021). 3 Once a plaintiff has been granted IFP status, the Court may, “under exceptional 4 circumstances” appoint counsel under 28 U.S.C. § 1915(e)(1). See Palmer v. Valdez, 560 5 F.3d 965, 970 (9th Cir. 2009). “When determining whether ‘exceptional circumstances’ 6 exist,” this court must weigh “the likelihood of success on the merits” and the plaintiff’s 7 ability “to articulate” her claims “in light of the complexity of the legal issues involved.” 8 Id. (cleaned up). As we shall see shortly, currently Powers has no likelihood of success. 9 And thus far she’s sufficiently articulated her claims so that the Court understands her 10 relatively straightforward claim. So, she does not currently meet the exceptional 11 circumstances threshold, and her request for counsel must be denied. 12 B. Screening and Dismissal 13 The IFP statute “not only permits but requires a district court to dismiss an in forma 14 pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 15 2000) (citing 28 U.S.C. § 1915(e)(2)). Federal Rules of Civil Procedure 8 and 12(b)(6) 16 require a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim 17 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 19 Powers seeks “‘control’ of VW through ownership of VW as CEO or private 20 ownership” due to its repossession of her “vehicle in Palm Beach, Florida in 2025.” 21 (ECF 1, at 2.) Her complaint does not address jurisdiction or suggest what statute she seeks 22 to recover through, although the civil cover sheet attached to her complaint asserts she 23 brings the suit as “civil right deprivation under 42 U.S.C. [§] 1983.” (ECF 1-1, at 1.) But 24 a “§ 1983 plaintiff must demonstrate a deprivation of a right secured by the Constitution 25 or laws of the United States, and that the defendant acted under color of state law.” Kirtley 26 v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). “[P]rivate parties” like defendant 27 Volkswagen Group, “are not generally acting under color of state law.” See Price v. State 28 of Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991). Powers’s complaint is silent on how 1 || Volkswagen Group was allegedly acting under the color of state law. 2 So, the complaint is dismissed without prejudice and with leave to amend to correct 3 deficiencies. See Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) 4 (holding “a district court should grant the plaintiff leave to amend if the complaint can 5 || possibly be cured by additional factual allegations’’). 6 CONCLUSION 7 Thus, the Court orders as follows: 8 l. Plaintiff's motion to proceed in forma pauperis is GRANTED, and the filing 9 || fee is waived. 10 2. Plaintiffs complaint is DISMISSED with leave to amend. 11 3. By June 26, 2026, plaintiff must file any amended complaint. The amended 12 ||complaint must be complete by itself without reference to any previous version of the 13 pleading; defendants not named and any claims not re-alleged in the amended complaint 14 || will be considered waived. If plaintiff fails to timely amend, the Court will enter a final 15 || order dismissing this civil action. 16 4. Plaintiff's motion for appointment of counsel is denied. 17 || Dated: May 18, 2026 19 Andrew G. Schopler United States District Judge 20 21 22 23 24 25 26 27 28 3 a