Kelly v. Scott Cook Intuit

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOLORES KELLY, Case No.: 3:23-cv-00694-JAH-JLB 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 SCOTT COOK INTUIT, MOTION TO PROCEED IN FORMA 15 Defendant. PAUPERIS;

16 (2) DISMISSING PLAINTIFF’S 17 COMPLAINT;

18 (3) DENYING PLAINTIFF’S 19 MOTION FOR APPOINTMENT OF COUNSEL AS MOOT. 20 21 (ECF Nos. 1, 2, 3) 22 INTRODUCTION 23 On April 17, 2023, Dolores Kelly (“Plaintiff”), proceeding pro se, filed a complaint 24 seeking damages against Scott Cook Intuit (“Defendant”). ECF No. 1. Plaintiff failed to 25 pay the required civil filing fees on time pursuant to 28 U.S.C. § 1914(a). Plaintiff filed a 26 motion to proceed in forma pauperis (“IFP”), (ECF No. 2), and for appointment of counsel, 27 (ECF No. 3). After a review of the pleadings, and for the reasons set forth below, the Court 28 1 (1) DENIES Plaintiff’s motion to proceed IFP, (2) DISMISSES the Complaint without 2 prejudice, and (3) DENIES as moot Plaintiff’s motion for appointment of counsel. 3 DISCUSSION 4 I. Motion to Proceed In Forma Pauperis 5 All parties instituting any civil action, suit or proceeding in a United States district 6 court, except an application for writ of habeas corpus, must pay filing fees totaling $452.1 7 See 28 U.S.C § 1914(a). Pursuant to 28 U.S.C. § 1915(a), an action may proceed despite 8 a plaintiff’s failure to pay filing fees, but only if the district court grants the plaintiff IFP 9 status. See Andrews v. Cervantes, 492 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 10 169 F.3d 1176, 1177 (9th Cir. 1999). Courts may grant IFP status if a plaintiff submits an 11 affidavit, including a statement of all their assets, showing the inability to pay the statutory 12 filing fee. See 28 U.S.C. § 1915(a). 13 Plaintiff submits an incomplete affidavit in which all fields related to assets and 14 expenses and identifying the city and state of their legal residence are blank. (ECF No. 2 15 at 5). The instructions require the applicant to “complete all questions and not to leave any 16 blanks: if the answer to a question is 0, none or not applicable, write that response.” (Id. 17 at 1). Without a complete affidavit, the Court is unable to determine Plaintiff’s ability or 18 inability to pay the statutory filling fee. Accordingly, the Court DENIES Plaintiff's motion 19 to proceed IFP. 20 /// 21 /// 22 /// 23 /// 24 25 1 In addition to the $452 statutory fee, civil litigants must pay an additional administrative 26 fee of $52. See U.S.C. § 1914(a) (Judicial Conference of Fees, District Court Misc. Fee 27 Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 2 A. Standard of Review 3 Pursuant to 28 U.S.C. § 1915(a), a plaintiff seeking leave to proceed IFP, is subject 4 to sua sponte review and mandatory dismissal if the action “is frivolous, malicious, fail[s] 5 to state a claim upon which relief may be granted, or seek[s] monetary relief from a 6 defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. 7 Tollefson, 575 U.S. 532, 537-38 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall 8 dismiss the case at any time if the court determines that ... (B) the action or appeal ... (ii) 9 fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 10 1127 (9th Cir. 2000) (en banc) (“section 1915(e) not only permits but requires a district 11 court to dismiss an in forma pauperis complaint that fails to state a claim.”). The standard 12 for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as Federal Rule 13 of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 14 Pursuant to Rule 12 (b)(6) dismissal of the complaint is warranted if the plaintiff’s 15 complaint fails to present a cognizable legal theory that shows the plaintiff may be entitled 16 to the relief sought by the complaint, or alternatively presents a legal theory, but fails to 17 plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need 18 not give “detailed factual allegations,” plaintiff must plead sufficient facts that, if true, 19 “raise a right to relief above the speculative level.” See Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 545 (2007). 21 B. Insufficiency of Plaintiff’s Allegations 22 As currently plead, Plaintiff’s Complaint fails to state a claim upon which relief may 23 be granted. Plaintiff generally states that Defendant “refuses to cooperate, verify 24 information, giving the business owners the run around after IRS registration.” (ECF No. 25 1 at 2). Plaintiff vaguely requests the relief of “legal repocession [sic].” (Id. at 3). The 26 Complaint is replete with incomplete phrases and sentence fragments. (See id.). The 27 Complaint does not clearly state the claims against Defendant, and does not provide factual 28 allegations showing Plaintiff is entitled to relief. See Fed. R. Civ. P. 8(a) (“a pleading that 1 states a claim for relief must contain: a short and plain statement of the claim showing that 2 the pleader is entitled to relief”). Because the Complaint runs afoul of the pleading 3 requirements of Rule 8(a), it fails to give adequate notice to the named Defendant of the 4 claims against him. Therefore, the Court finds that the Complaint fails to satisfy Rule 8(a) 5 pleading requirements. Accordingly, the Court DISMISSES Plaintiff’s Complaint. 6 III. Motion for Appointment of Counsel 7 Generally, a plaintiff in a civil case has no right to appointed counsel. See Hernandez 8 v. Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989); United States v. 30.64 Acres, 795 F.2d 9 796, 801 (9th Cir. 1986). A court has discretion, however, to appoint an attorney to 10 represent “any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). However, the 11 exercise of discretion to appoint counsel for indigent persons may occur only under 12 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1981). “A 13 finding of exceptional circumstances requires an evaluation of both ‘the likelihood of 14 success on the merits and the ability of the Plaintiff to articulate his claims pro se in light 15 of the complexity of the legal issues involved.’” Id. Neither of these issues is dipositive 16 and both must be viewed together before reaching a decision. Id. (quoting Wilborn v. 17 Escalderon, 789 F. 2d 1328, 1331 (9th Cir. 1986)). Because Plaintiff’s complaint does not 18 contain sufficient allegations to evaluate her success on the merits, Plaintiff’s motion is 19 DENIED as moot. 20 CONCLUSION 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s motion to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a) 23 is DENIED. Plaintiff may pay the filing fee or submit a complete IFP application 24 twenty-one (21) days leave from the filing date of this Order, in addition to an 25 amended complaint, as further detailed in paragraph (2), below; 26 2. The Complaint is DISMISSED without prejudice, pursuant to 28 U.S.C. § 27 1915(e)(2)(B)(ii). The Court GRANTS Plaintiff twenty-one (21) days leave, 28 from the filing date of this Order, to file an amended complaint which cures the l deficiencies of the pleading described herein. Plaintiff is cautioned, however, 2 that should she choose to file an amended complaint, it must be complete by 3 itself, comply with the Federal Rules of Civil Procedure, including Rule 8(a), and 4 that any claim not re-alleged will be considered waived. See CivLR 15.1; Hal 5 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 6 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa 7 Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave 8 to amend which are not re-alleged in an amended pleading may be considered 9 “waived if not repled.” A failure to file an amended complaint will result in 10 dismissal of this action without further order of the Court, and; 11 3. Plaintiffs’ motion for appointment of counsel is DENIED as moot. 12 IT IS SO ORDERED. 13 || DATED: June 27, 2023 14 | | M | | = 15 16 JOHN A. HOUSTON UMITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28