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); AND (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO FED. R. CIV. P. 4(c)(3) AND 28 U.S.C. § 1915(d)
CYNTHIA BASHANT, District Judge.
Plaintiff Juan Marcette Davis ("Plaintiff"), a state prisoner currently incarcerated at the California Rehabilitation Center ("CRC") in Norco, California, and proceeding pro se, has filed a civil rights complaint ("Compl.") pursuant to 42 U.S.C. § 1983 (ECF No. 1).
Plaintiff claims Defendants, all Richard J. Donovan Correctional Facility medical and correctional officials, violated his Eighth Amendment right to adequate medical treatment in 2012 and 2013 by failing to "honor [the] recommendations of [his previous] doctors and specialists, " and failing to provide him appropriate care and physical accommodations after he received surgery on his left foot. See Compl. at pp. 3-4, 8-14. Plaintiff alleges that a result of Defendants' failure to honor his prior chrono for a lower bunk assignment, he fell and further injured his back. Id. at 3, 4, 9-10. He seeks damages "to be determined" and demands a jury trial. Id. at 7.
Plaintiff has not prepaid the civil filing fee; instead he has 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 (ECF No. 3).
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 he 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). However, a prisoner granted leave to proceed IFP without prepayment nevertheless remains obligated to satisfy his fee obligation in installments regardless of whether his action is dismissed for other reasons. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
In support of his IFP Motion, Plaintiff has submitted certified copies of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff's trust account statement, as well as the prison certificate issued by an accounting clerk at CRC verifying his available balances, and has determined that he has no money in his account, and had no monthly deposits or balance credited to his account during the 6-month period preceding the filing of his Complaint. Therefore, Plaintiff has no available funds from which to pay any initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay... due to the lack of funds available to him when payment is ordered.").
Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fee owed will be collected by the California Department of Corrections and Rehabilitation ("CDCR") and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
MOTION TO APPOINT COUNSEL
Plaintiff has also filed a form requesting the appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f)(1) based on his indigence. See Pl.'s Mot. (ECF No. 3). While section 2000e-5(f)(1) provides for the appointment of counsel under specified certain circumstances in employment discrimination cases arising under Title VII of the Civil Rights Act of 1964, see Johnson v. U.S. Treasury Dept., 27 F.3d 415, 416-17 (9th Cir. 1994), Plaintiff's conditions of confinement claims arise under 42 U.S.C. § 1983 and § 1343(a)(3); therefore, the Court liberally construes his request as a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1) instead. See Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (noting court's "obligation'... where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.'") (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)).
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 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 is generally 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 ...