Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Monica D. Carr, Case No.: 26-cv-5069-RSH-SBC 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO PROCEED IN FORMA PAUPERIS AND MOTION TO 14 McDonalds, APPOINT COUNSEL 15 Defendant. [ECF Nos. 2, 3] 16 17 18 19 On September 8, 2026, plaintiff Monica D. Carr, proceeding pro se, commenced this 20 action by filing a complaint (the “Complaint”), a motion to proceed in forma pauperis 21 (“IFP”), and a motion to appoint counsel. ECF Nos. 1-3. For the reasons below, the Court 22 denies both motions. 23 I. MOTION TO PROCEED IFP 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee 28 Schedule, § 14 (eff. Dec. 1, 2023)). An action may proceed despite a plaintiff’s failure to 1 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 2 1915(a). See Escobedo v. Applebees, 787 F.3d 1226, 1232 (9th Cir. 2015) (“Section 3 1915(a)(1) allows federal courts to authorize commencement of a suit ‘without prepayment 4 of fees or security therefor, by a person who submits an affidavit’ demonstrating ‘that the 5 person is unable to pay such fees or give security therefor.’”) (quoting 28 U.S.C. § 6 1915(a)(1)); see Hymas v. United States DOI, 73 F.4th 763, 766 n.3 (9th Cir. 2023) 7 (“§ 1915(a)(1) applies to all persons notwithstanding its ‘prisoner possesses’ language.”) 8 (internal quotation marks omitted). 9 In her IFP application, Plaintiff states that her assets consist of $500 cash and a home 10 valued at $250,000. ECF No. 2 at 2-3. According to her application, Plaintiff has an income 11 of $150 per month from self-employment and has monthly expenses totaling $3,800. Id. at 12 1, 4. Based on these representations, the Court concludes Plaintiff has adequately 13 demonstrated that she is unable to pay the filing fee at this time. 14 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 15 A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 16 1915(a) is subject to sua sponte review and dismissal should the Court determine, inter alia, 17 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 18 See 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 19 (“[S]ection 1915(e) applies to all in forma pauperis complaints, not just those filed by 20 prisoners.”). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 25 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 26 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 27 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 28 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 2 Upon screening pursuant to 28 U.S.C. § 1915(e)(2), the Court concludes that 3 Plaintiff’s Complaint fails to state a claim upon which relief may be granted. The 4 Complaint’s caption states that it is brought for “discrimination at work.” See ECF No. 1. 5 But the Complaint’s underlying factual allegations are minimal. See id. The Complaint 6 only makes a generalized assertion that Plaintiff’s manager “told [a] story calling or texting 7 me and that wasn’t true” and Plaintiff was told “they were going to call [her] back to work, 8 but no one did call [her] back.” Id. at 2. Plaintiff fails to allege facts that state a plausible 9 claim for relief. 10 III. MOTION TO APPOINT COUNSEL 11 There is no constitutional right to counsel in a civil case, and the decision to appoint 12 counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial court and 13 is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 14 1101, 1103 (9th Cir. 2004); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) 15 (noting that only “exceptional circumstances” support such a discretionary appointment). 16 The burden of demonstrating exceptional circumstances is on the party seeking counsel. 17 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). A district court must consider the 18 likelihood of success on the merits and the ability of the pro se litigant to articulate his 19 claims in light of their legal complexity. Id. 20 Plaintiff has not met the requisite burden here. For the reasons stated above, Plaintiff 21 fails to state a claim or demonstrate any likelihood of success on the merits; and there is no 22 indication that appointment of counsel would assist in articulating a meritorious claim. The 23 Court finds that Plaintiff has not established exceptional circumstances warranting 24 appointment of counsel. 25 IV. CONCLUSION 26 For the foregoing reasons, Plaintiff’s IFP application, ECF No. 2, and motion for 27 appointment of counsel, ECF No. 3, are DENIED without prejudice. The Court 28 DISMISSES the Complaint pursuant to 28 U.S.C. § 1915(e)(2). If Plaintiff wishes to 1 || proceed with this action, Plaintiff must both: (1) pay the filing fee or file a renewed 2 || application to proceed IFP; and (2) file an amended complaint addressing the deficiencies 3 ||identified above and establishing a basis for federal subject matter jurisdiction within 4 || thirty days of the date of this Order. 5 IT IS SO ORDERED. Dated: September 15, 2026 hut ¢ Lone g Hon. Robert S. Huie United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28