Kelly v. Cook

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DOLORES KELLY, Case No.: 3:23-cv-00619-JAH-BLM 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 TIM COOK, 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. [20] 21 (ECF Nos. 2, 3) 22 INTRODUCTION 23 On April 6, 2023, Dolores Kelly (“Plaintiff”), proceeding pro se, filed a complaint 24 alleging corruption and fraud against Tim Cook (“Defendant”). ECF No. 1. Plaintiff also 25 filed a motion to proceed in forma pauperis (“IFP”), (ECF No. 2), and for appointment of 26 counsel, (ECF No. 3). After a review of the pleadings, and for the reasons set forth below, 27 the Court (1) DENIES Plaintiff’s motion to proceed IFP, (2) DISMISSES the Complaint 28 without prejudice, and (3) DENIES Plaintiff’s motion for appointment of counsel. 1 DISCUSSION 2 I. Motion to Proceed In Forma Pauperis 3 All parties instituting any civil action, suit, or proceeding in a United States district 4 court, except an application for writ of habeas corpus, must pay filing fees totaling $402.1 5 See 28 U.S.C. § 1914 (a). Pursuant to 28 U.S.C. § 1915 (a), an action may proceed despite 6 a plaintiff’s failure to pay filing fees only if the district court grants the plaintiff IFP status. 7 See Andrews v. Cervantes, 492 F.3d 1047 , 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 8 F.3d 1176 , 1177 (9th Cir. 1999). Courts may grant IFP status if a plaintiff submits an 9 affidavit, including a statement of all their assets, showing the inability to pay the statutory 10 filing fee. See 28 U.S.C. § 1915 (a). 11 Here, Plaintiff submits an incomplete affidavit in which all fields related to assets 12 and expenses are blank. See ECF No. 2. The instructions require the applicant to 13 “complete all questions.” Id. Without a complete affidavit, the Court is unable to 14 determine Plaintiff’s ability or inability to pay the statutory filing fee. Accordingly, the 15 Court DENIES Plaintiff’s motion to proceed IFP. 16 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915 (e)(2)(B) 17 A. Legal Standard 18 A complaint filed by any person seeking leave to proceed IFP pursuant to 28 U.S.C. 19 § 1915(a) is subject to sua sponte review and mandatory dismissal if it is “frivolous, 20 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 21 relief from a defendant immune from such relief.” See 28 U.S.C. § 22 1915(e)(2)(B); Coleman v. Tollefson, 575 U.S. 532, 537-38 (2015) (pursuant to 28 U.S.C. 23 § 1915(e)(2) “the court shall dismiss the case at any time if the court determines that ... (B) [25] 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See U.S.C. § 1914(a) (Judicial Conference of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply [28] 1 the action or appeal ... (ii) fails to state a claim on which relief may be granted.”); Lopez v. 2 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“section 1915(e) not only permits 3 but requires a district court to dismiss an in forma pauperis complaint that fails to state a 4 claim.”). The standard for failure to state a claim under § 1915(e)(2)(B)(ii) is the same as 5 Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th 6 Cir. 2012). 7 Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable 8 legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); 9 see Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to 10 dismiss a claim on the basis of a dispositive issue of law.”). Alternatively, a complaint 11 may be dismissed where it presents a cognizable legal theory yet fails to plead essential 12 facts under that theory. Robertson, 749 F.2d at 534 . While a plaintiff need not give 13 “detailed factual allegations,” she must plead sufficient facts that, if true, “raise a right to 14 relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 545 15 (2007). 16 To meet the requirements of Rule 12(b)(6), “a complaint must contain sufficient 17 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547 ). A claim 19 is facially plausible when the factual allegations permit “the court to draw the reasonable 20 inference that the defendant is liable for the misconduct alleged.” Id. In other words, “the 21 non-conclusory factual content, and reasonable inferences from that content, must be 22 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, [23] 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted). 24 B. Insufficiency of Plaintiff’s Allegations 25 As currently plead, Plaintiff’s Complaint fails to state a claim upon which relief may 26 be granted. Plaintiff states generally that Defendant “and possible [sic] Jeff Bezos” 27 engaged in “hacking and sanction or annex without legal authorization of the business 28 owners.” ECF No. 1. The Complaint is replete with incomplete phrases and sentence 1 fragments. See id. The Complaint makes only conclusory statements without any factual 2 basis for the “court to draw a reasonable inference that defendant[s] are liable for the 3 misconduct alleged.” Moss, 572 F. 3d at 969 . Therefore, the Court finds that the Complaint 4 fails to satisfy Rule 12(b)(6) pleading requirements. Accordingly, the Court DISMISSES 5 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). A civil plaintiff 11 who seeks appointment of counsel must make a reasonably diligent effort to obtain counsel 12 before a court may exercise discretion under § 1915(e)(1). Bailey v. Lawford, 835 F.Supp. 13 550, 552 (S.D. Cal. 1993). 14 Here, Plaintiff has no viable claims, (see supra II.B.), and Plaintiff’s affidavit in 15 support of her motion to appoint counsel is incomplete. See ECF No. 3. Without a 16 complete affidavit, the Court is unable to determine if Plaintiff made a reasonably diligent 17 effort to obtain counsel. Accordingly, the Court DENIES Plaintiff’s motion to appoint 18 counsel. 19 CONCLUSION 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff’s motion to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915 (a) 22 is DENIED; 23 2. The Complaint is DISMISSED without prejudice, pursuant to 28 U.S.C. § 24 1915(e)(2)(B)(ii). The Court GRANTS Plaintiff twenty-one (21) days leave, 25 from the filing date of this Order, to file an amended complaint which cures the 26 deficiencies of the pleading described herein. Plaintiff is cautioned, however, 27 that should she choose to file an amended complaint, it must be complete by 28 itself, comply with the Federal Rules of Civil Procedure, including Rule 8(a), and 1 that any claim not re-alleged will be considered waived. See CivLR 15.1; Hal 2 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 3 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa 4 Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave 5 to amend which are not re-alleged in an amended pleading may be considered 6 “waived if not repled.” A failure to file an amended complaint will result in 7 dismissal of this action without further order of the Court, and; 8 3. Plaintiffs’ motion for appointment of counsel is DENIED. 9 IT IS SO ORDERED. 10 || DATED: May 16, 2023 JOHN A. HOUSTON UMTED STATES DISTRICT JUDGE