1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 BRENDA IBARRA, Case No.: 19cv2062-JAH (AHG)

11 Plaintiff, ORDER DENYING MOTION FOR 12 v. LEAVE TO PROCEED IN FORMA PAUPERIS; SUA SPONTE 13 ADMINISTRATIVE SERVICE IN DISMISSING COMPLAINT; AND CONTEMP., 14 DENYING MOTION TO APPOINT Defendant. COUNSEL. 15

16 17 On October 28, 2019, Plaintiff Brenda Ibarra (“Plaintiff”), proceeding pro se, filed 18 a complaint along with a motion for leave to proceed in forma pauperis (“IFP”), pursuant 19 to

(a). See Doc. No. 2. Additionally, Plaintiff filed a motion to request for 20 appointment of counsel. See Doc. No. 3. After a careful review of the record and for the 21 reasons set forth below, the Court (1) DENIES Plaintiff’s motion for leave to proceed IFP 22 [Doc. No. 2]; (2) Sua sponte DISMISSES Plaintiff’s complaint [Doc. No. 1], without 23 prejudice; and (3) DENIES Plaintiff’s motion for counsel [Doc. No. 3], without prejudice. 24 I. Plaintiff’s IFP Motion 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $400. See

(a). The action may proceed despite a plaintiff’s failure to 28 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 1 § 1915(a). See Andrews v. Cervantes,

(9th Cir. 2007); Rodriguez v. 2 Cook,

(9th Cir. 1999). Courts grant leave to proceed IFP when 3 plaintiffs submit an affidavit, including a statement of all of their assets, showing the 4 inability to pay the statutory filing fee. See

(a). 5 In support of her IFP motion, Plaintiff submitted an application to proceed in this 6 Court without paying fees or costs. See Doc. No. 2. The application states Plaintiff is a 7 “Gov. Service Employee,” however, Plaintiff fails to indicate her average monthly income 8 or income expected to receive the following month. See Doc. No. 2 at 1. Plaintiff reports 9 no other income or assets. Furthermore, Plaintiff lists monthly expenses totaling $215.00, 10 however, Plaintiff fails to explain how she is able to cover her monthly expenses. Based 11 upon the information presented by Plaintiff, the Court is unable to determine whether or 12 not Plaintiff can afford the required filing fee to pursue the instant action. 13 II. Sua Sponte Screening Pursuant to

(e)(2)(B) 14 Even if Plaintiff paid the filing fee or had sufficiently demonstrated her indigence, 15 her complaint would still be dismissed. Notwithstanding payment of any filing fee or 16 portion thereof, a complaint filed by any person proceeding in forma pauperis pursuant to 17

(a) is subject to a mandatory sua sponte review and dismissal by the court 18 to the extent it is “frivolous, malicious, fail[s] to state a claim upon which relief may be 19 granted, or seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C. 20 § 1915(e)(2)(B); Calhoun v. Stahl,

(9th Cir. 2001) (“[T]he provisions of 21

(e)(2)(B) are not limited to prisoners.”). “[S]ection 1915(e) not only 22 permits, but requires, a district court to dismiss an in forma pauperis complaint that fails 23 to state a claim.” Lopez v. Smith,

(9th Cir. 2000) (en banc). Here, 24 even assuming that Plaintiff were entitled to proceed IFP, her complaint is subject to 25 dismissal because Plaintiff does not have standing to pursue the alleged claims and fails to 26 state a claim upon which relief may be granted. 27 /// 28 /// 1 A. Lack of Standing 2 As a preliminary matter, the Court considers whether Plaintiff has standing to assert 3 her claims. The standing doctrine addresses the question of “whether the litigant is entitled 4 to have the court decide the merits of the dispute.” Warth v. Seldin,

, 498 5 (1975). “To satisfy Article III standing, a plaintiff must show (1) he has suffered an ‘injury 6 in fact’ that is concrete and particularized and actual or imminent, not conjectural or 7 hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and 8 (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a 9 favorable decision.” Braunstein v. Arizona Dept. of Trans.,

(9th Cir. 10 2012). Plaintiff’s lack of standing is sufficient to deny the request to proceed IFP. See 11 Minetti v. Port of Seattle,

(9th Cir. 1998) (concluding that the district 12 court did not abuse its discretion by denying plaintiff’s IFP application for lack of 13 standing). 14 Here, it is unclear how Plaintiff has standing to bring the instant lawsuit. Plaintiff 15 has not shown how the Court is in a position to decide the merits of her dispute. 16 Additionally, Plaintiff has not alleged a concrete injury in fact. Plaintiff alleges “I am in 17 presence of demand to ask for recognition of my service with payments.” However, the 18 Plaintiff does not allege sufficient facts to allow the Court to conclude she has suffered an 19 actual injury—or will imminently suffer such an injury—due to Defendant’s actions. As 20 such, Plaintiff fails to sufficiently demonstrate standing to pursue the claims asserted. 21 B. Failure to State a Claim 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

(9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a 26 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 27 R. Civ. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, 28 1 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

, 678 2 (2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). 3 Upon review of the complaint, the Court struggles to comprehend Plaintiff’s 4 plausible allegations. A complaint is facially plausible when the facts alleged allow “the 5 court to draw reasonable inferences that the defendant is liable for the misconduct alleged.” 6 Ashcroft,

. Here, Plaintiff’s complaint does not state a cognizable cause of 7 action or claim for relief. Plaintiff states a series of unfortunate events and circumstances 8 that she has encountered. However, there is no reasoning or explanation as to how these 9 circumstances can give rise to a cause of action or how any of the unfortunate 10 circumstances are related to the named Defendant. There is no indication as to the legal 11 claim in which Plaintiff wishes to assert. Furthermore, the allegations in the Complaint fail 12 to give adequate notice to the named Defendant of the claims against it, as required by 13 Federal Rule of Civil Procedure 8(a). Accordingly, the complaint fails to state a claim upon 14 which relief may be granted. 15 III. Request for Appointment of Counsel 16 Plaintiff has filed a request for appointment of counsel. However, there is no right 17 to counsel in civil cases, and district courts may appoint counsel only under “exceptional 18 circumstances.” Terrell v. Brewer,

(9th Cir. 1991). “A finding of 19 exceptional circumstances requires an evaluation of both ‘likelihood of success on the 20 merits and the ability of the plaintiff to articulate [her] claims pro se in light of the 21 complexity of the legal issues involved.’ Neither of these issues is dispositive and both 22 must be viewed together before reaching a decision.”

Here, the Plaintiff’s complaint is 23 dismissed for lack of standing and failure to state a claim. Therefore, the Court DENIES 24 Plaintiff’s motion for appointment of counsel without prejudice. 25 IV. Leave to Amend 26 Courts generally grant leave to amend unless amendment would be futile. Townsend 27 v. Univ. Of Alaska,

(9th Cir. 2008). Although the Court has serious 28 doubts in Plaintiff’s ability to state a cognizable claim, the Court will provide Plaintiff with 1 opportunity to file an amended complaint. Plaintiff must include a short and plain 2 ||statement that entitles Plaintiff to relief. See Fed. R. Civ. P. 8(a)(2). In addition, Plaintiff 3 || must indicate what relief she is seeking from the Court. See Fed. R. Civ. P 8(a)(3). 4 || V. Conclusion and Order 5 Based on the foregoing, the Court hereby: 6 1. DENIES Plaintiff's Motion to Proceed IFP, pursuant to

1915(a) [Doc No. 2]; 8 2. Sua sponte DISMISSES this action without prejudice due to □□□□□□□□□□□ 9 lack of standing and failure to state a claim [Doc. No. 1]; and 10 3. DENIES Plaintiff’s Motion to Appoint Counsel without prejudice [Doc. 11 No. 3]. 12 IT IS SO ORDERED. 13 14 15 |] DATED: April 13, 2020 16 M7 Hgn. John A. Houston 18 ynited States District Judge 19 20 21 22 23 24 25 26 27 28