United States District Court, S.D. California
JESUS MARTINEZ, Reg. No. A095-795-978, Plaintiff,
C/O NOBLAZA; C/O REID; C/O HAYNES; C/O KITCHEN; C/O PABLO; C/O VALLES; C/O BURCIAGA; C/O FUENTES, Defendants.
ORDER (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) DENYING MOTION TO APPOINT COUNSEL; AND (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SUMMONS AND COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) AND FED.R.CIV.P. 4(c)(3) (ECF Nos. 2 and 3.)
JANIS L. SAMMARTINO, District Judge.
Jesus Martinez ("Plaintiff"), a former immigration detainee at the San Diego Correctional Facility ("CCA") in San Diego, and proceeding pro se, initiated this civil action pursuant to Bivens v. Six Unknown Names Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 1983/1985(3), and the Equal Access to Justice Act, 5 U.S.C. § 504(a)(1), while he was detained at CCA. (Complaint 1, ECF No. 1.)
Plaintiff did not prepay the filing fee 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.) He also filed a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1). (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 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).
However, "[u]nlike other indigent litigants, prisoners proceeding IFP must pay the full amount of filing fees in civil actions and appeals" pursuant to the Prison Litigation Reform Act ("PLRA"). Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by 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). Under this definition, "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 or adjudicated delinquent for, a violation of criminal law." Agyeman, 296 F.3d at 886.
When he filed his Complaint, Plaintiff was an "immigration detainee in civil proceedings" and detained at the CCA. See Compl. at 2, 5. 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, the Court GRANTS Plaintiff's Motion to Proceed IFP.
MOTION TO APPOINT COUNSEL
Plaintiff also requests the appointment of counsel to assist him in prosecuting this civil action because he is indigent, was in custody at the time his case was filed, and therefore had limited access to the law library. (Mot. to Appt. Counsel 1, ECF No. 3.) Plaintiff also alleges he requires legal assistance conducting discovery, and that his case "will likely involve conflicting testimony, " and that trained counsel would be better equipped to cross-examine his witnesses. ( Id. at 2.)
There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (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 Am., 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 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)).
At this preliminary stage of the proceedings, the Court declines to exercise its discretion under § 1915(e)(1), and DENIES Plaintiff's Motion without prejudice. As explained below, Plaintiff appears capable of articulating the factual basis for his claims and the legal basis for them does not appear particularly complex. Id. Moreover, while the Court finds his Complaint sufficient to survive the mandatory screening required by 28 U.S.C. § 1915(e)(2), the likelihood of Plaintiff's ultimate success on the merits is not yet clear. Id. Finally, Plaintiff's release from custody has relieved him from some of the obstacles of litigation which are necessarily inherent in a custodial setting. See, e.g., Rand v. Rowland, 154 F.3d 952, 958 (9th Cir. 1998) (en banc) (noting the "unique handicaps of incarceration" faced by pro se prisoner litigants).
Therefore, the Court finds that neither the interests of justice nor any exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, ...