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Cunningham v. Ucsf Spine Center

United States District Court, Ninth Circuit

July 8, 2013

LORENZO R. CUNNINGHAM, Plaintiff,
v.
UCSF SPINE CENTER; et al., Defendants.

ORDER FOR FILING OF IN FORMA PAUPERIS APPLICATION OF PAYMENT OF FILING FEE

EDWARD M. CHEN, District Judge.

This pro se civil action was filed on April 30, 2013. On the same date he filed his complaint, Plaintiff requested a 30-day extension to pay the filing fee and the fee for service of process by the U.S. Marshal, in which he claimed not to know the amount of the filing fee. On April 30, 2013, the Court notified Plaintiff in writing that the action was deficient due to the failure to pay the filing fee or furnish a completed and signed court-approved in forma pauperis application. The notice stated that the "filing fee of $350.00 is now due." Docket # 4. Plaintiff never paid the filing fee and never filed a completed in forma pauperis application. He did, however, send repeated requests for forms and fees to have the Marshal serve process.

The very first thing that must be taken care of is the fee obligation. Plaintiff's request for a 30-day extension of time to pay the fee or submit an in forma pauperis application is GRANTED. (Docket # 3.) Plaintiff states that someone in his family would send the filing fee; to date, the Court has not received the filing fee. Plaintiff must pay the $350.00 filing fee or file a completed in forma pauperis application (including a certificate of funds and a copy of his inmate trust account statement for the last six months) no later than August 2, 2013. Failing to pay the fee or file a completed in forma pauperis application will result in the dismissal of this action.

Plaintiff's motion for summonses to serve on defendants and a fee schedule for service of process is DENIED as premature. (Docket # 5.) Until Plaintiff pays the filing fee or submits a completed in forma pauperis application, the Court will not know whether the complaint will be screened. Until the Court knows whether the complaint needs to be screened, the Court will not know whether any service of process will be required to be performed by Plaintiff or the Marshal.

Plaintiff has moved for appointment of counsel to represent him in this action. A district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon , 789 F.2d 1328, 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See id. Neither of these factors is dispositive and both must be viewed together before deciding on a request for counsel under § 1915(e)(1). Here, exceptional circumstances requiring the appointment of counsel are not evident at this time. The request for appointment of counsel is DENIED. (Docket # 3.)

Plaintiff has moved for a preliminary injunction requiring Defendant UCSF Spine Center to remove the rods, plates and screws that were installed in his back during a September 2012 surgery after other hardware in his back broke. He alleges that he is in great pain as a result of the hardware. Plaintiff is not entitled to an injunction because he has completely failed to show any likelihood of success on the merits. See Winter v. Natural Resources Defense Council, Inc ., 555 U.S. 7, 20 (2008). His exhibits show that he has serious and longstanding back problems, but do not show any act or omission giving rise to liability by any of the defendants. The motion for a preliminary injunction is DENIED. (Docket # 3.)

Plaintiff's several filings indicate that he wants to proceed quickly toward a resolution of this action. The best way to make that happen is to comply with the Court's orders and notices in a timely manner, which Plaintiff failed to do when he ignored the April 30, 2013 notice to pay the filing fee or file a completed in forma pauperis application. As noted above, Plaintiff has until August 2, 2013 to pay the $350.00 filing fee or file a completed in forma pauperis application.

IT IS SO ORDERED.


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