United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; (2) DENYING MOTION TO APPOINT COUNSEL [ECF No. 3]; (3) DISMISSING CIVIL ACTION AS TO CERTAIN DEFENDANTS FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii);
AND (4) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SUMMONS AND COMPLAINT UPON REMAINING DEFENDANTS PURSUANT TO FED.R.CIV.P. 4(c)(3) AND 28 U.S.C. § 1915(d)
CYNTHIA BASHANT, District Judge.
Sukumaran Muthu ("Plaintiff"), an immigration detainee at the U.S. Department of Homeland Security's ("DHS") Immigration and Customs Enforcement's ("ICE") Processing Center in El Centro, California, and proceeding pro se, has filed a civil action pursuant to 42 U.S.C. §§ 1983 and 1985(3) (ECF No. 1 ("Compl.")).
Plaintiff claims Defendants have violated his constitutional rights to adequate medical care and meaningful access to the courts, and have further "breach[ed] [a] suggested promissory agreement" to provide him with a "T-Visa" or protection under the "witness protection program" based on information he alleges to have provided regarding international trafficking and a "ring of smugglers." See Compl. at pp. 4-15. Plaintiff demands a jury trial and seeks an injunction and general and punitive damages. Id. at pp. 14-15.
Plaintiff did not prepay the filing fees required to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), as well as a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 3).
I. MOTION TO PROCEED IFP
All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
"Unlike other indigent litigants, prisoners proceeding in forma pauperis must pay the full amount of the filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform Act]." Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(1); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002)). Under the PLRA, a "prisoner" is "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h). However, "an alien detained by the INS pending deportation is not a prisoner' within the meaning of the PLRA, " because deportation proceedings are civil, rather than criminal in nature, and an alien detained pending deportation has not necessarily been "accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law." Agyeman, 296 F.3d at 886.
Plaintiff is a citizen of India who was taken into the custody of the DHS at ICE's El Centro Processing Center on August 20, 2011, and he claims he is subject to removal "from U.S. soil." See Compl. at pp. 2, 4-5, 11, 28. Therefore, because Plaintiff is not a "prisoner" as defined by 28 U.S.C. § 1915(h), the filing fee provisions of 28 U.S.C. § 1915(b) do not apply to him. See Agyeman, 296 F.3d 885-86 (finding that PLRA's filing fee requirements "do not apply to an alien detainee who proceeds in forma pauperis ..., so long as he does not also face criminal charges.").
Accordingly, the Court has reviewed Plaintiff's affidavit of assets and finds it is sufficient to show that he is unable to pay the fees or post securities required to maintain this action. Therefore, his Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) is GRANTED.
II. MOTION TO APPOINT COUNSEL
Plaintiff also requests the appointment of counsel to assist him because he is indigent, in custody, has limited access to legal resources, and little knowledge of the law. See Pl.'s Mot. (ECF No. 3) at p. 2.
There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25-27 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts have some limited discretion to "request" that an attorney represent an indigent civil litigant. Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). This discretion may be exercised only under "exceptional circumstances." Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires "an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims in light of the complexity of the legal issues involved.'" Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
The Court DENIES Plaintiff's Motion without prejudice because, as discussed below, it appears Plaintiff is capable of articulating the factual basis for his claims, and his likelihood of success on the merits is not at all yet clear. See id. Therefore, neither the interests of justice nor any exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
A. Standard of Review
A complaint filed by any person proceeding IFP is subject to sua sponte dismissal if it contains claims which are frivolous, malicious, or fail to state a claim upon which relief may be granted, or if it "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners"); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ...