Busto v. City of San Diego

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 C.M. BUSTO, Case No.: 21-cv-277-GPC(MDD)

11 Plaintiff, ORDER: 12 v. 1) DENYING PLAINTIFF’S 13 CITY OF SAN DIEGO, MOTION TO PROCEED IN FORMA 14 Defendant. PAUPERIS, [Dkt. No. 2];

15 (2) SUA SPONTE DISMISSING 16 COMPLAINT; AND 17 (3) DENYING PLAINTIFF’S 18 REQUEST FOR APPOINTMENT OF COUNSEL 19 22 On February 16, 2021, Plaintiff C.M. Busto, proceeding pro se, filed a complaint 23 against the City of San Diego. (Dkt. No. 1, Compl.) Based on the reasoning below, the 24 Court DENIES Plaintiff’s motion to proceed in forma pauperis, sua sponte DISMISSES 25 the action for failure to state a claim and DENIES Plaintiff’s request for appointment of 26 counsel. 27 A. Motion to Proceed In Forma Pauperis 28 All parties instituting any civil action, suit, or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $350.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 4 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 5 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit 6 demonstrating his inability to pay the filing fee, and the affidavit must include a complete 7 statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). 8 In order to proceed IFP, a Plaintiff is required to submit an affidavit that details a 9 statement of all assets as well as exhibits to demonstrate the Plaintiff’s inability to pay the 10 necessary filing fee. 28 U.S.C. § 1915(a)(1); see also S.D. Local Civ. R. 3.2. Approval 11 to proceed IFP is proper where the affidavit is “sufficient” in that it “alleges the 12 [Plaintiff] cannot pay the court costs and still afford the necessities of life.” Escobedo v. 13 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). While the Plaintiff must show his 14 financial situation prevents payment, he is not obliged to demonstrate complete financial 15 insolvency. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). In 16 evaluating an affidavit under this motion, courts are to consider whether the Plaintiff’s 17 financial circumstances have been conveyed “with some particularity, definiteness, and 18 certainty.” Escobedo, 787 F.3d at 1234 (quoting United States v. McQuade, 647 F.2d 19 938, 940 (9th Cir. 1981)); see 28 U.S.C. § 1915(a)(1) (to proceed IFP, a plaintiff must 20 submit an affidavit that contains a complete statement of her assets and demonstrates her 21 inability to pay the fee). The court possesses the authority to deny a Plaintiff’s motion to 22 proceed IFP in the event the Plaintiff is “unable or unwilling to verify their poverty.” 23 McQuade, 647 F.2d at 940. A trial court has discretion to approve or deny leave to 24 proceed IFP. Skelly v. Dep’t of Educ., No. 19-CV-1812-GPC, 2019 WL 6840398, at *2 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 28 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to 1 (S.D. Cal. Dec. 16, 2019) (quoting Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)). 2 Plaintiff has filed an affidavit supporting his IFP application but without 3 providing any factual support concerning his income, assets and debts. (See Dkt. No. 2.) 4 Plaintiff has failed to demonstrate his financial circumstances “with some particularity, 5 definiteness, and certainty” leaving this Court with no factual basis to rely on in its 6 evaluation of Plaintiff’s motion. See Escobedo, 787 F.3d at 1234. Because Plaintiff has 7 failed to demonstrate he is unable to afford the filing fee, the Court DENIES Plaintiff’s 8 motion for leave to proceed IFP. 9 B. Sua Sponte Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) 10 A complaint filed by any person proceeding IFP pursuant to § 1915(a) is subject to 11 mandatory sua sponte review and dismissal by the Court if it is “frivolous, or malicious; 12 fails to state a claim upon which relief may be granted; or seeks monetary relief against a 13 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 14 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not 15 limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). § 16 1915(e)(2) mandates that a court reviewing a complaint filed pursuant to the IFP 17 provisions of 28 U.S.C. § 1915 rule on its own motion to dismiss before directing that the 18 complaint be served by the U.S. Marshal pursuant to Federal Rule of Civil Procedure 19 4(c)(2). Lopez, 203 F.3d at 1127. 20 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 21 Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this 22 limited jurisdiction, and the burden of establishing the contrary rests upon the party 23 asserting jurisdiction.” Id. Federal subject matter jurisdiction may be based on (1) 24 federal question jurisdiction under 28 U.S.C. § 1331 or (2) diversity jurisdiction under 28 25 U.S.C. § 1332. The complaint must establish either that federal law creates the cause of 26 action or that the plaintiff's right to relief necessarily depends on the resolution of 27 substantial questions of federal law. Franchise Tax Board of Cal. v. Construction 28 Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10–11 (1983). Alternatively, a 1 federal court may have diversity jurisdiction over an action involving citizens of different 2 states where the amount in controversy exceeds $ 75,000. 28 U.S.C. § 1332. “The 3 essential elements of diversity jurisdiction, including the diverse residence of all parties, 4 must be affirmatively alleged in the pleadings.” Bautista v. Pan Am. World Airlines, Inc., 5 828 F.2d 546, 552 (9th Cir. 1987). 6 Here, the Complaint provides no basis for the Court’s subject matter jurisdiction as 7 he does not allege a cause of action based on federal law or that there is diversity 8 jurisdiction. 9 Next, under Federal Rule of Civil Procedure (“Rule”) 8(a)(2), a pleading must 10 contain “a short and plain statement of the claim showing that the pleader is entitled to 11 relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not give “detailed factual 12 allegations,” a plaintiff must plead sufficient facts that, if true, “raise a right to relief 13 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). 14 To state a claim upon which relief may be granted “a complaint must contain sufficient 15 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim 17 is facially plausible when the factual allegations permit “the court to draw the reasonable 18 inference that the defendant is liable for the misconduct alleged.” Id. 19 Here, Plaintiff fails to allege factual allegations in the complaint that may entitle 20 him to relief. In his complaint, Plaintiff does not fill out the sections provided to state his 21 claim, nor the relief he requests. (Dkt. No. 1 at 2–3.) Plaintiff merely attaches emails to 22 his complaint, contending, inter alia, (1) all humans have the identity of being the 23 president of the United States, (2) every American has co-ownership of every major 24 corporation, and (3) every American is the rightful owner of the apartment or house in 25 which they live. (Id. at 11.) Accordingly, Plaintiff alleges without specificity (1) “Our 26 entire society is fraudulent,” and (2) “Our entire society bases what it does on American 27 English which is a system that comprises itself of all of its words, two for which are the 28 words of existence known as lying and deception.” (Id. at 19.) Plaintiff has failed to 1 both a right of relief and sufficient factual matter state a claim that is plausible on its 2 ||face. See Twombly, 550 U.S. at 545-547. Further, the Court is unable to draw an 3 ||inference that the City of San Diego is liable for any misconduct. Jd. Accordingly, the 4 || Court sua sponte DISMISSES Plaintiff's complaint for failure to state a claim. 5 ||C. Request for Appointment of Counsel 6 Plaintiff filed a form motion for appointment of counsel. (Dkt. No. 1 at 5—10.) 7 || However, he did not fill out the form motion to explain why he seeks appointment of 8 ||counsel. Vd.) Based on Plaintiff's failure to provide any reasons for appointment of 9 || counsel, the Court DENIES his request.” 10 Conclusion 11 Based on the above, the Court DENIES Plaintiffs motion to proceed in forma 12 || pauperis, sua sponte DISMISSES the complaint for failure to state a claim with leave to 13 ||amend and DENIES Plaintiff's request for appointment of counsel. 14 IT IS SO ORDERED. 15 Dated: March 16, 2021 (oaks (0S ) 16 Hon. Gonzalo P. Curiel 17 United States District Judge 18 19 20 21 22 23 24 || —____ 26 ||? The Court notes that Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Servs., 27 452 U.S. 18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint 3g || counsel for indigent persons under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).