Maleka-Ndandu v. Elite Show Services, Inc.

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 TRESOR MALEKA-NDANDU, Case No.: 23-cv-1100-GPC-JLB 11 Plaintiff, ORDER 12 v. (1) DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA 13 ELITE SECURITY STAFFING, and PAUPERIS; ELITE SHOW SERVICES, INC., 14 [ECF No. 2] Defendants. (2) SUA SPONTE DISMISSING [15] PLAINTIFF’S COMPLAINT FOR 16 FAILURE TO STATE A CLAIM; (3) DENYING PLAINTIFF’S [17] REQUEST FOR APPOINTMENT OF 18 COUNSEL [ECF No. 3] [20] Plaintiff Tresor Maleka-Ndandu, proceeding pro se, filed a complaint against [21] Defendants Elite Security Staffing and Elite Show Services, Inc. ECF No. 1. Maleka22 Ndandu additionally filed an application to proceed in forma pauperis (“IFP”), ECF No. 2, [23] and a request for appointment of counsel, ECF No. 3. 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 motion for appointment of [26] counsel. The Court GRANTS Plaintiff leave to amend the complaint, motion to proceed [27] IFP, and request for appointment of counsel. [28] 1 A. Motion To Proceed In Forma Pauperis 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except on application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914 (a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 6 section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an 8 affidavit demonstrating their inability to pay the filing fee, and the affidavit must include a 9 complete statement of the plaintiff’s assets. 28 U.S.C. § 1915 (a)(1); Escobedo v. 10 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (demonstrating the statute’s applicability 11 to non-prisoner plaintiffs). Meaning, “a plaintiff seeking IFP status must allege poverty 12 ‘with some particularity, definiteness, and certainty.’ ” Id. at 1234 (quoting United States 13 v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). There is no established formula to 14 determine IFP status. Id. at 1235. Though generally “[a]n affidavit in support of an IFP 15 application is sufficient where it alleges that the affiant cannot pay the court costs and still 16 afford the necessities of life.” Id. at 1234; accord Adkins v. E.I. Dupont de Nemours & 17 Co., 335 U.S. 331, 339 (1948). 18 Maleka-Ndandu submitted an incomplete and self-contradictory IFP application. 19 ECF No. 2. The application is incomplete because the instructions on the first page, above 20 where Maleka-Ndandu dated the form, require that the applicant not leave any blanks and 21 to instead write “ ‘0,’ ‘none,’ or ‘not applicable (N/A)’ ” wherever that is the correct 22 response. Id. at 1.2 Maleka-Ndandu left several questions blank, see id. at 2 (blank spaces 23 in second row of Maleka-Ndandu’s employment history; spouse’s employment history; 24 and financial information), and failed to describe the major financial changes expected [25] 26 1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, [27] District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not apply to 28 persons granted leave to proceed IFP. Id. 1 during the next 12 months, id. at 5. The form is self-contradictory because it suggests both 2 that during the past twelve months Maleka-Ndandu did not earn any employment income, 3 and that he was grossing $1,500 per month from employment until February 28, 2023. Id. 4 at 1–2; see also ECF No. 1 at 2 (providing employment end date of February 28, 2023). 5 Maleka-Ndandu reports not having any other sources of income, no assets, and no monthly 6 expenses. ECF No. 2 at 1–5. 7 Because Maleka-Ndandu’s application to proceed in forma pauperis is incomplete 8 and self-contradictory, the application is DENIED with leave to amend. If Maleka-Ndandu 9 intends to proceed in this matter, he should either pay the filing fee in its entirety or submit 10 a new IFP application within 30 days of the date of this Order. The new IFP application, 11 if filed, should be complete, correct any reporting mistakes, and demonstrate that Maleka12 Ndandu would struggle to afford both the $402 in filing costs and the necessities of life. 13 B. Sua Sponte Dismissal Pursuant To 28 U.S.C. § 1915 (e)(2) 14 1. Legal standards 15 A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915 (a) is 16 subject to mandatory sua sponte review and dismissal by the Court if it is “(i) frivolous, or 17 malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary 18 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2)(B); 19 see Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. 20 § 1915(e)(2)(B) are not limited to prisoners.”). 21 Under Federal Rule of Civil Procedure (“Rule”) 8(a), “[a] pleading that states a claim 22 for relief must contain . . . a short and plain statement of the claim . . . [and] a demand for 23 the relief sought, which may include relief in the alternative or different types of relief.” A 24 complaint should set forth “who is being sued, for what relief, and on what theory, with 25 enough detail to guide discovery.” See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 26 1996); see also Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000) (“To 27 comply with Rule 8 each plaintiff must plead a short and plain statement of the elements 28 of his or her claim, identifying the transaction or occurrence giving rise to the claim and 1 the elements of the prima facie case . . . .”). To state a claim upon which relief may be 2 granted “a complaint must contain sufficient factual matter, accepted as true, to ‘state a 3 claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 4 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Though, legal conclusions 5 are “not entitled to the assumption of truth.” Id. at 679–80. A claim is facially plausible 6 when the factual allegations permit “the court to draw the reasonable inference that the 7 defendant is liable for the misconduct alleged.” Id. at 678 . 8 Federal courts have limited jurisdiction and the party asserting jurisdiction bears the 9 burden of establishing it. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 10 Federal courts “possess only that power authorized by [the] Constitution and statute.” Id. 11 at 378; accord Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The 12 court is constitutionally required to raise issues related to federal subject matter jurisdiction 13 and may do so sua sponte. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 , 93–94 14 (1998); see Nevada v. Bank of Am. Corp., 672 F.3d 661, 673 (9th Cir. 2012) (“[I]t is well 15 established that ‘a court may raise the question of subject matter jurisdiction, sua sponte, 16 at any time during the pendency of the action, even on appeal.’ ” (quoting Snell v. 17 Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002))). Accordingly, federal courts have a 18 continuing duty to confirm their jurisdictional power and are “obliged to inquire sua sponte 19 whenever a doubt arises as to [its] existence.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. 20 Doyle, 429 U.S. 274, 278 (1977). “If the court determines at any time that it lacks subject21 matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). 22 There are two bases for federal subject matter jurisdiction: (1) federal question 23 jurisdiction under 28 U.S.C. § 1331 ; and (2) diversity jurisdiction under 28 U.S.C. § 1332 . 24 A district court has federal question jurisdiction in “all civil actions arising under the 25 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 . “Federal question 26 jurisdiction exists only when a federal question is presented on the face of the plaintiff’s” 27 well-pleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). In 28 relevant part, a district court has diversity jurisdiction “where the matter in controversy 1 exceeds the sum or value of $75,000, . . . and is between . . . citizens of different States.” [2] 28 U.S.C. § 1332 (a)(1). 3 Courts “liberally construe[]” pro se claims and hold them to “less stringent standards 4 than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) 5 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). “This rule is particularly important 6 in civil rights cases.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). 7 2. Discussion 8 Maleka-Ndandu’s complaint is against Elite Security Staffing. ECF No. 1 at 1. 9 Maleka-Ndandu states that in February 2023, while working as a security guard for Elite 10 Security Inc. in San Diego, he was “attacked” by a client that “tried to run” Maleka-Ndandu 11 over with a car. Id. at 2. Within the month, Maleka-Ndandu allegedly reported the incident 12 to Elite Show Services, Inc. Id. On February 28, 2023, Elite Show Services, Inc. allegedly 13 wrongfully terminated Maleka-Ndandu’s employment. Id. No other facts are alleged in 14 the complaint. See id. at 1–4 (absence). Maleka-Ndandu seeks one million dollars in 15 compensatory damages for mental health trauma. Id. at 3. 16 Maleka-Ndandu’s complaint fails to satisfy the Rule 8 pleading standards. Although 17 the suit was filed against Elite Security Staffing, id. at 1, the statement of the claim 18 identifies two other entities—Elite Security Inc. and Elite Show Services, Inc., id. at 2— 19 without explaining the relationship between the three entities. Even under a liberal 20 construction, it is unclear how Elite Show Services, Inc. could have wrongfully terminated 21 Maleka-Ndandu’s job with Elite Security Inc. or how Elite Security Staffing could be liable 22 for either the alleged incident with the client or the wrongful termination. 23 Furthermore, the complaint is not clear as to which cause of action and 24 corresponding elements Maleka-Ndandu is seeking to recover damages against the 25 defendant or defendants. State and federal law offer multiple avenues for wrongful [28] 1 termination claims. For example, Title VII of the Civil Rights Act of 1964 encodes many 2 causes of action for various forms of employment discrimination and retaliation. See 42 3 U.S.C. §§ 2000e through 2000e-17. A plaintiff seeking relief under Title VII must both 4 allege the requisite elements of the particular cause of action and exhaust administrative 5 remedies prior to bringing a lawsuit “by filing a charge with the Equal Opportunity 6 Commission (‘EEOC’) or a qualifying state agency and receiving a right-to-sue notice.” 7 Scott v. Gino Morena Enters., LLC, 888 F.3d 1101, 1104 (9th Cir. 2018); see 42 U.S.C. § 8 2000e-5. There is no suggestion in the complaint that Maleka-Ndandu received a right-to9 sue notice or otherwise pursued relief from the EEOC or its equivalent state agency. 10 Accordingly, Maleka-Ndandu’s complaint is DISMISSED with leave to amend. If 11 Maleka-Ndandu intends to proceed in this matter, he shall file an amended complaint 12 within 30 days of the date of this Order. The amended complaint should clearly explain 13 the facts giving rise to Maleka-Ndandu’s injuries and identify the theory or theories of 14 liability against each defendant. 15 C. Request For Appointment Of Counsel 16 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resol. Tr. 17 Corp., 32 F.3d 1360 , 1363 (9th Cir. 1994). However, under 28 U.S.C. § 1915 (e)(1), federal 18 courts are afforded discretion to appoint counsel for “any person unable to afford counsel.” 19 The appointment of counsel requires “exceptional circumstances.” Terrell v. Brewer, 935 20 F.2d 1015, 1017 (9th Cir. 1991); accord Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th 21 Cir. 1986). “A finding of exceptional circumstances requires an evaluation of both ‘the 22 likelihood of success on the merits and the ability of the petitioner to articulate his claims 23 pro se in light of the complexity of the legal issues involved.’ ” Terrell, 935 F.2d at 1017 24 (quoting Wilborn, 789 F.2d at 1331 ). Neither factor “is dispositive and both must be [25] 26 3 Recourse under California state law may include, for example, a tort cause of action for wrongful termination in violation of public policy. See Prue v. Brady Co./San Diego, Inc., 242 Cal. App. 4th 1367 , [27] 1377–78, 196 Cal. Rptr. 3d 68 , 75–76 (2015) (discussing California Supreme Court’s recognition of 28 “common law tort cause of action for at-will employees against employers who discharge them in 1 viewed together before reaching a decision.” Id. (quoting Wilborn, 789 F.2d at 1331 ). 2 Indigent plaintiffs are required to “make a reasonably diligent effort to secure counsel as a 3 prerequisite to the court’s appointing counsel for them.” Bailey v. Lawford, 835 F. Supp. 4 550, 552 (S.D. Cal. 1993); accord Skelly v. U.S. Dep’t of Educ., No. 19-cv-1812-GPC5 BLM, 2019 WL 6840398 , at *5 (S.D. Cal. Dec. 16, 2019). 6 Maleka-Ndandu requests court-appointed counsel because he is not knowledgeable 7 in the law. See ECF No. 3 at 3. Maleka-Ndandu does not appear to have made any efforts 8 to obtain legal counsel. See id. at 1–2 (space provided to identify attorneys that declined 9 representation left blank). As discussed above, the Court finds that Maleka-Ndandu’s 10 financial circumstances do not clearly establish his indigency. See supra Part A. 11 Moreover, Maleka-Ndandu does not meet his burden of demonstrating reasonable 12 diligence to secure counsel. See Bailey, 835 F. Supp. at 552 . Finally, due to the above13 described deficiencies in the complaint, see supra Part B, it is unclear whether Maleka14 Ndandu’s circumstances are “exceptional”; whether there is a likelihood of success on the 15 merits; and whether counsel would be necessary to help Maleka-Ndandu to articulate his 16 claims. See, e.g., Cavazos v. Garilaso, No. 3:21-cv-01156-JAH-LR, 2023 WL 2702565 , 17 at *1 (S.D. Cal. Mar. 29, 2023) (denying counsel appointment despite claimant’s “poor 18 mental health, . . . limited library access, and limited time to prepare . . . case”); Skelly, [19] 2019 WL 6840398 , at *5 (denying counsel appointment despite plaintiff receiving IFP and 20 demonstrating reasonably diligent effort to obtain counsel). Accordingly, the Court 21 concludes the circumstances do not support appointment of counsel at this stage of the 22 proceedings. Maleka-Ndandu’s request for appointment of counsel is DENIED with leave 23 to amend. 24 D. Leave To Amend 25 District courts “should not dismiss a pro se complaint without leave to amend unless 26 ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 27 amendment.’ ” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. 28 Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988)). 1 The Court GRANTS Maleka-Ndandu LEAVE TO AMEND his motion to proceed 2 forma pauperis, his complaint, and his request for appointment of counsel. If Maleka3 || Ndandu would like to proceed in this matter, he must file an amended complaint within 4 ||30 days of the date of this Order. The Amended Complaint must be complete by itself 5 || without reference to any previous pleading. See Civ. L. Rule 15.1(a). The amended 6 ||complaint should clearly state the causes of action upon which Maleka-Ndandu’s claims 7 || are based—such as any common law, statutory, or constitutional violation. Any amended 8 ||complaint must be accompanied either by the $402 filing fee or a complete amended IFP 9 || application addressing the deficiencies discussed above. 10 If Maleka-Ndandu fails to timely amend, the Court will enter a final order dismissing 11 entire action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 12 || does not take advantage of the opportunity to fix his complaint, a district court may convert 13 || the dismissal of the complaint into dismissal of the entire action.”). 14 Conclusion 15 For the reasons explained above, the Court DENIES Maleka-Ndandu’s request to 16 || proceed in forma pauperis; sua sponte dismisses the complaint for failure to state a claim 17 |/upon which relief may be granted; and DENIES the request for appointment of counsel. 18 Court GRANTS Maleka-Ndandu leave to amend the motion to proceed □□ forma 19 || pauperis, the Complaint, and the request for appointment of counsel. Any amended filings 20 || must be made within 30 days of the date of this Order or else the case will be closed without 21 || further opportunity to amend. 22 IT IS SO ORDERED. [23] Dated: July 18, 2023 2 sale Ox 5 Hon. Gonzalo P. Curiel United States District Judge