1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Ashely Mendez GUERRERO, Case No.: 23-cv-1518-AGS-DEB 4 Plaintiff, ORDER GRANTING PLAINTIFF’S

MOTION FOR LEAVE TO

5 v.

PROCEED IN FORMA PAUPERIS

6 SDPD CARMEL VALLEY, (ECF 3) AND DENYING

PLAINTIFF’S MOTION TO

7 Defendant.

APPOINT COUNSEL (ECF 2)

8 9 Plaintiff Ashely Mendez Guerrero moves to proceed without paying the filing fee 10 and for appointed counsel. Guerrero qualifies to proceed without paying the fee, and her 11 complaint states a claim as to at least one cause of action. So, the Court grants Guerrero’s 12 motion to waive the filing fee but, because there is no right to appointed counsel in civil 13 cases, denies her motion for counsel. 14 MOTION TO PROCEED IN FORMA PAUPERIS 15 Typically, parties instituting a civil action in a United States district court must pay 16 filing fees of $402.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma 17 pauperis, a plaintiff can proceed without paying the fee. Rodriguez v. Cook, 169 F.3d 1176, 18 1177 (9th Cir. 1999). 19 Guerrero owns no assets and has a single account holding “$22.” (ECF 3, at 2.) She 20 had a job as a caretaker paying $3,000 a month, but she lost that job in April and has had 21 no income since. (Id.) Her monthly living expenses total $1,000. (Id. at 4.) The Court finds 22 that Guerrero has sufficiently shown an inability to pay the initial fees. See Blount v. Saul, 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay a $52 administrative 27 fee. See 28 U.S.C. § 1914(a); District Court Misc. Fee Schedule, § 14 (effective Dec. 1, 2020). 28 1 No. 21-CV-0679-BLM, 2021 WL 1561453, at *1 (S.D. Cal. Apr. 21, 2021) (“It is well- 2 settled that a party need not be completely destitute to proceed IFP.”). 3 28 U.S.C. § 1915(e) SCREENING 4 When reviewing an IFP motion, the court must screen the complaint and dismiss it 5 if it is “frivolous or malicious,” “fails to state a claim,” or seeks monetary relief from a 6 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 7 1122, 1126‒27 (9th Cir. 2000). “The standard for determining whether a plaintiff has failed 8 to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as 9 the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison 10 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to 11 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 12 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). This standard 13 is a liberal one, particularly when the action has been filed pro se. See Estelle v. Gamble, 14 429 U.S. 97, 97 (1976). But even a “liberal interpretation . . . may not supply elements of 15 the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 16 F.2d 266, 268 (9th Cir. 1982). 17 Guerrero alleges that she was “detained” by San Diego Police Department officers 18 for a psychological evaluation. (See ECF 1, at 6.) This detention apparently arose because 19 of domestic strife in her home, primarily with her mother and brother. (Id. at 2–4.) In any 20 event, Guerrero alleges that the police thought she was lying about her family’s abusive 21 behavior and that the officers in turn mistreated Guerrero. (Id. at 6.) She was held overnight 22 until she was seen by a “doctor” who “immediately released” her. (Id. at 6.) 23 It’s not entirely clear what claims she intends to bring, but she seeks, in addition to 24 a litany of unsupported requests, damages for “unreasonable seizure.” (See also id. at 7–8 25 (demanding damages and wide-ranging evidentiary seizures for “malicious prosecution,” 26 “Second Amendment infringement,” “applied wrong legal standard,” and others).) The 27 Court concludes that Guerrero states a claim under 42 U.S.C. § 1983 for Fourth 28 1 Amendment unreasonable seizure that is sufficient to pass initial screening. See Lopez, 203 2 F.3d at 1126‒27. 3 Guerrero has only named one arresting officer, and only in the body of the complaint, 4 not in the caption. Nevertheless, the Court will interpret that officer—Laura Adler—as a 5 defendant. See Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 6 2014) (“A party may be properly in a case if the allegations in the body of the complaint 7 make it plain that the party is intended as a defendant.” (cleaned up)). 8 All other claims mentioned in Guerrero’s complaint—including requests to 9 investigate unnamed third parties and family members—are dismissed for failure to state 10 a claim. This includes all claims against the San Diego Police Department—sued as “SDPD 11 Carmel Valley”2—as there are only conclusory allegations that could support liability 12 against the department. See Castro v. Cnty. of L.A., 833 F.3d 1060, 1073 (9th Cir. 2016) 13 (noting that municipalities cannot be held liable for their agents’ actions and that “[i]n order 14 to establish municipal liability, a plaintiff must show that a policy or custom led to the 15 plaintiff’s injury” (cleaned up)). 16 MOTION TO APPOINT COUNSEL 17 Guerrero also moves for appointed counsel. “Generally, a person has no right to 18 counsel in civil actions.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Even under 19 the statutory authority to recruit counsel in civil cases, the Court cannot force attorneys to 20 represent an indigent civil litigant. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 21 490 U.S. 296, 310 (1989) (holding that the relevant statute—28 U.S.C. § 1915—“does not 22 authorize the federal courts to make coercive appointments of counsel”). But “a court may 23 under ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant to 24 28 U.S.C. § 1915(e)(1).” Palmer, 560 F.3d at 970 (citation omitted). “When determining 25 whether exceptional circumstances exist, a court must consider the likelihood of success 26 27 2 Although the complaint names “SDPD Carmel Valley,” it was entered into the 28 1 on the merits as well as the ability of the petitioner to articulate h[er] claims pro se in light 2 of the complexity of the legal issues involved.” Id. (citation and quotation marks omitted). 3 Guerrero has not met the burden for judicial recruitment of counsel. She points to no 4 extraordinary circumstances, and she has not described any efforts to secure pro bono 5 counsel on her own before requesting counsel. (See ECF 2 (leaving blank the portions about 6 her own efforts).) The likelihood of success on the merits is unclear, as the Court has no 7 evidence before it. Finally, Guerrero has so far articulated her factual allegations with 8 clarity. (See generally ECF 1.) Thus, the motion to appoint counsel is denied. 9 CONCLUSION 10 Based on these allegations, Guerrero’s complaint survives the “low threshold” for 11 proceeding past the § 1915(e) screening on a claim for unreasonable seizure against Laura 12 Adler. See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). So, the Court 13 GRANTS Guerrero’s IFP motion. But she has not met the requirements for recruitment of 14 counsel, so that motion is DENIED. 15 The Clerk is directed to update the case caption to correct “SDPD Caramel Valley” 16 to “SDPD Carmel Valley” and to add Laura Adler as a defendant. The Clerk must also 17 issue a summons as to the complaint upon Laura Adler and forward the summons to 18 Guerrero along with a blank version of U.S. Marshal Form 285. In addition, the Clerk will 19 provide Guerrero with a certified copy of this Order, a certified copy of her complaint, and 20 the summons. Guerrero must complete each USM Form 285 completely and accurately, 21 include addresses where defendants may be found or are subject to service under Civil 22 Local Rule 4.1c, and return them to the U.S. Marshal according to the instructions the Clerk 23 provides. 24 The U.S. Marshal is ORDERED to serve a copy of the complaint and summons 25 upon defendant Adler as directed by Guerrero on each completed USM Form 285, and to 26 promptly file proof of service—or proof of any unsuccessful attempt at service—with the 27 Clerk of Court. See CivLR 5.2. All costs of that service will be advanced by the 28 United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 1 Guerrero is ORDERED, after original service by the U.S. Marshal, to serve on 2 ||defendant or her counsel a copy of every further pleading, motion, or other document 3 ||submitted for the Court’s consideration, under Federal Rule of Civil Procedure 5(b). 4 ||Guerrero must include with every original document she seeks to file with the Court a 5 || certificate stating the manner and date in which a true and correct copy of that document 6 || was served on defendants or their counsel. See CivLR 5.2. Any document received by the 7 || Court that has not been properly filed with the Clerk, or that fails to include a certificate of 8 service upon defendants or their counsel, may be disregarded. 9 Dated: August 22, 2023 10 Z | f. 11 Andrew G. Schopler United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28