1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID B. TURNER, JR., Case No.: 23-CV-29 TWR (NLS)

12 Plaintiff,

ORDER (1) DENYING WITHOUT

13 v. PREJUDICE MOTION TO

PROCEED IN FORMA PAUPERIS,

14 CITY OF SAN DIEGO, (2) DENYING WITHOUT 15 Defendant. PREJUDICE MOTION FOR

APPOINTMENT OF COUNSEL,

16

AND (3) FOR PLAINTIFF TO SHOW

17 CAUSE WHY THIS ACTION

SHOULD NOT BE DISMISSED FOR

18

LACK OF SUBJECT-MATTER

19 JURISDICTION

20 (ECF Nos. 1, 1-2, 2) 21

22 Presently before the Court is Plaintiff David B. Turner, Jr.,’s Complaint against 23 Defendant the City of San Diego (“Compl.,” ECF No. 1), as well as Plaintiff’s Application 24 to Proceed in District Court Without Prepaying Fees of Costs (“IFP Mot.,” ECF No. 1-2) 25 and Request for Appointment of Counsel (“Mot. for Counsel,” ECF No. 2). Plaintiff 26 generally alleges that the City of San Diego is liable for damages in the amount of 27 $50,000,000 because it “fail[ed] to maintain a safe property.” (See Compl. at 2.) 28 Specifically, Plaintiff alleges that he was struck by a car on February 4, 2022, because some 1 streetlights were out and that a medic caused him greater injury by “twisting” his broken 2 leg. (See id.) 3 IFP MOTION 4 The Court first addresses Plaintiff’s Motion to proceed in forma pauperis (“IFP”). 5 All parties instituting any civil action, suit, or proceeding in a district court of the United 6 States, except an application for a writ of habeas corpus, must pay filing and administration 7 fees totaling $402.1 28 U.S.C. § 1914(a). A court may, however, in its discretion, allow a 8 plaintiff to proceed without paying these fees if the plaintiff seeks leave to proceed IFP by 9 submitting an affidavit demonstrating the fees impose financial hardship. See 28 U.S.C. 10 § 1915(a); Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Although the statute does 11 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 12 poverty with some particularity. Escobeda, 787 F.3d at 1234. Granting a plaintiff leave to 13 proceed IFP may be proper, for example, when the affidavit demonstrates that paying court 14 costs will result in a plaintiff’s inability to afford the “necessities of life.” Id. The affidavit, 15 however, need not demonstrate that the plaintiff is destitute. Id. 16 Here, Plaintiff’s affidavit indicates that he has an average monthly income of $0 17 during the past twelve months, (see IFP Mot. at 1–2); no cash or assets, (see id. at 2–3); 18 and average monthly expenses of $0 over the last twelve months. (See id. at 4–5.) By way 19 of explanation, he indicates that he is “injur[ed]/disabled.” (See id. at 5.) 20 Without further explanation, “[i]t is not apparent how Plaintiff is obtaining the 21 necessities of life, and in turn whether this source of funds—if it exists—can cover the 22 required filing fee in this action.” See Herta v. Wiblemo, No. 22-CV-1679-BAS-BGS, 23 2022 WL 17573923, at *2 (S.D. Cal. Nov. 7, 2022). Because “[t]he Court can draw no 24 conclusions from the incomplete . . . IFP application . . . , the application does not indicate 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed 28 1 that requiring Plaintiff to pay the required $400 fee would impair her ability to obtain the 2 necessities of life.” See id. The Court therefore DENIES WITHOUT PREJUDICE 3 Plaintiff’s IFP Motion. Should Plaintiff wish to proceed, within twenty-eight (28) days of 4 the date of this Order, he must (1) prepay the entire $402 civil filing and administrative fee 5 in full; or (2) complete and file a Motion to Proceed IFP that includes a fuller accounting 6 of his monthly income and expenses or an explanation for the lack thereof. 7 MOTION FOR COUNSEL 8 In his Motion for Counsel, Plaintiff claims he “need[s] to get [an] attorney to help 9 [him] understand [the] paper[s] a[nd] properly uphold [his] right[s] in San Diego.” (See 10 Mot. for Counsel at 3.) “Generally, a person has no right to counsel in civil actions.” 11 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Under 28 U.S.C. § 1915(e)(1), 12 however, a court may “appoint counsel for indigent civil litigants” based on a showing of 13 “exceptional circumstances.” Id. (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 14 1103 (9th Cir.2004), cert. denied, 545 U.S. 1128 (2005)). In determining whether 15 exceptional circumstances exist, the court considers (1) the “likelihood of success on the 16 merits” and (2) “the ability of the petitioner to articulate his claims pro se in light of the 17 complexity of the legal issues involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 18 954 (9th Cir. 1983)). 19 Because the Court has denied without prejudice Plaintiffs’ IFP Motion, see supra, 20 the Court has not yet had the opportunity to determine that Plaintiff is indigent or to screen 21 Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2). Further, as discussed below, see 22 infra, the Court harbors doubts regarding its jurisdiction over this action. Consequently, 23 “it is impossible to determine [Plaintiff]’s likelihood of success on the merits of his claims 24 or whether there are exceptional circumstances that justify the appointment of counsel 25 here.” See Scaperotta v. Kauai Cmty. Corr. Ctr., No. CV 21-00085 DKW-RT, 2021 WL 26 1084769, at *1 (D. Haw. Feb. 12, 2021) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 27 (9th Cir. 1991)). The Court therefore DENIES WITHOUT PREJUDICE Plaintiff’s 28 Motion for Counsel (ECF No. 2). 1 ORDER TO SHOW CAUSE 2 Although the City of San Diego has not moved to dismiss Plaintiff’s Complaint, 3 “this court has an independent obligation to address sua sponte whether [it] ha[s] subject 4 matter jurisdiction.” Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004) 5 (citing Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999)), and, “[i]f the court 6 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 7 action.” Fed. R. Civ. P. 12(h)(3). This is because “[f]ederal courts are courts of limited 8 jurisdiction,” and “[i]t is to be presumed that a cause lies outside this limited jurisdiction, 9 and the burden of establishing the contrary rests upon the party asserting jurisdiction.” 10 Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017) (quoting 11 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Federal district 12 courts may exercise jurisdiction over “all civil actions arising under the Constitution, laws, 13 or treaties of the United States,” 28 U.S.C. § 1331, or “where the matter in controversy 14 exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . 15 citizens of different States[.]” 28 U.S.C. § 1332(a)(1). 16 Here, Plaintiff claims that this case presents a federal question. (See ECF No. 1-1.) 17 Plaintiff, however, fails to invoke a federal statute or a provision of the United States 18 Constitution. (See generally Compl.) Instead, Plaintiff appears to allege state law 19 negligence claims against the City of San Diego and an unidentified “medic” whose 20 employer is unclear. (See generally id.) He invokes only the “Government Tort Claims 21 Act,” which the Court understands to be the California Tort Claims Act, Cal. Gov’t Code 22 §§ 810–996.6, and the California Constitution. (See Compl. at 2 (citing Cal. Const. art. I 23 §§ 1, 3, 7, 17).) Because it does not appear that Plaintiff’s claims “aris[e] under the 24 Constitution, laws, or treaties of the United States,” see 28 U.S.C. § 1331, the Court 25 ORDERS Plaintiff TO SHOW CAUSE within twenty-eight (28) days of the date of this 26 Order why this action should not be dismissed for lack of subject-matter jurisdiction. 27 / / / 28 / / /

I CONCLUSION

2 For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE Plaintiff's 3 ||Motions to Proceed IFP and for Appointment of Counsel. Accordingly, within twenty- 4 eight (28) days of the date of this Order, Plaintiff must (1) prepay the entire $402 civil 5 || filing and administrative fee in full; er (2) complete and file a Motion to Proceed IFP that 6 includes a fuller accounting of his monthly income and expenses or an explanation for the 7 || lack thereof. 8 The Court also ORDERS Plaintiff TO SHOW CAUSE why this action should not 9 dismissed for lack of subject-matter jurisdiction. Within twenty-eight (28) days of the 10 || date of this Order, Plaintiff therefore must file (1) a written response to the Court’s Order 11 |/to Show Cause demonstrating why this Court has federal subject-matter jurisdiction over 12 || this action; er (2) an amended complaint asserting a claim “arising under the Constitution, 13 || laws, or treaties of the United States.” 28 U.S.C. § 1331. 14 IT IS SO ORDERED. 15 ||Dated: January 10, 2023 i [59 14 bre 7 Honorable Todd W. Robinson United States District Judge 18 19 20 21 22 23 24 25 26 27 28