Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 3:08-cv-01478-W-AJB

Document 4

Filed 08/15/2008

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 On August 14, 2008 Plaintiff Maurice Grayton ("Plaintiff"), proceeding pro se, 18 filed a complaint against Defendants Annie White et al. alleging some sort of breach of 19 contract or patent violation. (Doc. No. 1.) The same day, Plaintiff moved for leave to 20 proceed in forma pauperis (IFP) and requested appointment of counsel. (Doc. Nos. 2, 21 3.) The Court takes the matters under submission and without oral argument. See S.D. 22 Cal. Civ. R. 7.1(d)(1). For the following reasons, the Court GRANTS Plaintiff's IFP 23 request and DENIES Plaintiff's motion for appointment of counsel. (Doc. Nos. 2, 3.) 24 /// 25 /// 26 /// 27 /// 28 I. PLAINTIFF MAY PROCEED IN FORMA PAUPERIS
-108cv1478W

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MAURICE GRAYTON, vs. ANNIE WHITE et al., Defendants. Plaintiff, CASE NO. 08-CV-1478 W (AJB) ORDER (1) GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Doc. No. 2); (2) DENYING MOTION TO APPOINT COUNSEL (Doc. No. 3)

Case 3:08-cv-01478-W-AJB

Document 4

Filed 08/15/2008

Page 2 of 4

1

The determination of indigency falls within the district court's discretion.

2 California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev'd on other 3 grounds, 506 U.S. 194 (1993) ("[28 U.S.C. §] 1915 typically requires the reviewing 4 court to exercise its sound discretion in determining whether the affiant has satisfied the 5 statute's requirement of indigency."). It is well settled that a party need not be 6 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 7 U.S. 331, 339­40 (1948); see also Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 8 1995) ("[T]he filing fee, while discretionary, should not take the prisoner's last dollar." 9 [citations]). Rather, to satisfy the requirements of 28 U.S.C. § 1915(a), an affidavit 10 need only state that one cannot "because of his poverty pay or give security for costs . . . 11 and still be able to provide himself and dependents with the necessities of life." Adkins, 12 335 U.S., at 339. At the same time, however, the court must "assure that federal funds 13 are not squandered to underwrite, at public expense, . . . the remonstrances of a suitor 14 who is financially able, in whole or in material part, to pull his own oar." Temple v. 15 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 16 Here, Plaintiff is currently unemployed, has not worked in over six years, has 17 practically no savings, and lists a forty year-old Camaro as his only significant asset. 18 Although Plaintiff receives $1064 per month in Social Security, he lists debts totaling 19 $55,000. Given that Plaintiff's current monthly obligations in all likelihood outpace his 20 monthly income, the Court finds that forcing Plaintiff to pay the filing fee would deprive 21 him of the necessities of life. Accordingly, the Court GRANTS Plaintiff's motion to 22 proceed IFP. However, if it appears at any time in the future that Plaintiff's financial 23 picture has improved for any reason, the Court will direct Plaintiff to pay the filing fee 24 to the Clerk of the Court. This includes any recovery Plaintiff may realize from this 25 suit or others, and any assistance Plaintiff may receive from family or government. 26 /// 27 /// 28 II. PLAINTIFF IS NOT ENTITLED TO APPOINTMENT OF COUNSEL
-208cv1478W

Case 3:08-cv-01478-W-AJB

Document 4

Filed 08/15/2008

Page 3 of 4

1

There is no constitutional right to appointed counsel in employment-

2 discrimination cases. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 3 (9th Cir. 1982). District courts have discretion, however, to appoint counsel "in such 4 circumstances as the court may deem just." 42 U.S.C. § 2000e-5(f)(1)(B); Brown v. 5 Cont'l Can Co., 765 F.2d 810, 814 (9th Cir. 1985). In exercising that discretion, the 6 court must consider three factors: "(1) the plaintiff's financial resources, (2) the efforts 7 made by the plaintiff to secure counsel, and (3) whether the plaintiff's claim has merit." 8 Bradshaw v. Zoological Soc'y, 662 F.2d 1301, 1318 (9th Cir. 1981). 9 As a threshold issue, Plaintiff is not entitled to counsel under 42 U.S.C. § 2000e10 5(f)(1) because this does not appear to be an employment discrimination or civil rights 11 case. Even if it was, however, Plaintiff's financial resources, or lack thereof, are such as 12 to satisfy the first factor. However, Plaintiff has not demonstrated that he has diligently 13 pursued efforts to secure counsel. Plaintiff alleges that he spoke with a single attorney, 14 just once, who is currently waiting for Plaintiff to send him more information. (Pl.'s Mot. 15 3.) Plaintiff appears to have made no efforts to secure counsel through additional 16 channels. (Id. 4.) 17 Moreover, Plaintiff does not demonstrate that his claims are likely to succeed on 18 the merits. His complaint, while vague and confusing, levies a variety of spectacular and 19 unbelievable charges against several government agencies, supposedly acting in concert 20 to deprive Plaintiff of the benefit of some idea or concept. Such vague, unsupported, 21 and conclusory allegations do not convince the Court that Plaintiff has a meritorious 22 claim for relief. Accordingly, the Court DENIES Plaintiff's motion for appointment of 23 counsel. 24 25 III. 26 CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiff's request to proceed IFP

27 and DENIES Plaintiff's motion for appointment of counsel. (Doc. Nos. 2,3.) If at any 28 time in the future it appears that Plaintiff no longer qualifies under 28 U.S.C. § 1915 for
-308cv1478W

Case 3:08-cv-01478-W-AJB

Document 4

Filed 08/15/2008

Page 4 of 4

1 relief from the $350 filing fee, the Court shall direct Plaintiff to pay the fee to the Clerk 2 of the Court. 3 4 6 In conclusion: 1. 2. Plaintiff's Complaint filed on August 14, 2008 shall serve as the operative The United States Marshal shall serve a copy of the Complaint filed on

5 Complaint in this case. 7 August 14, 2008 and an accompanying Summons upon Defendant as directed by 8 Plaintiff on U.S. Marshal Form 285. All costs of service shall be advanced by the United 9 States. 10 12 3. 4. Defendant shall respond to the Complaint within the time provided by the Plaintiff shall serve upon Defendant or, if appearance has been entered by 11 applicable provisions of the Federal Rules of Civil Procedure. 13 counsel, upon Defendant's counsel, a copy of every additional pleading (other than the 14 Complaint) or other document submitted for consideration of the Court. Plaintiff shall 15 include with the original paper to be filed with the Clerk of the Court a certificate 16 stating the manner in which a true and correct copy of any document was served on the 17 Defendant or Defendant's counsel and the date of service. Any paper received by a 18 district judge or magistrate judge that has not been filed with the Clerk or that fails to 19 include a Certificate of Service will be disregarded by the Court. 20 21 22 23 24 DATED: August 15, 2008 25 26 27 28
-408cv1478W

IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge