United States District Court, S.D. California
ORDER (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [DOC. NO. 2] (2) DENYING MOTION FOR APPOINTMENT OF
COUNSEL [DOC. NO. 3] (3) DENYING MOTION FOR PRELIMINARY
INJUNCTION [DOC. NO. 4] (4) DIRECTING U.S. MARSHAL TO EFFECT
MARILYN L. HUFF, DISTRICT JUDGE
31, 2016, Plaintiff Vicente Arraiga Alvarez, currently
incarcerated at Corcoran State Prison and proceeding pro se,
filed a civil rights complaint under 42 U.S.C. § 1983.
(Doc. No. 1.)
claims that Richard J. Donovan Correctional Facility and
Corcoran State Prison officials violated and continue to
violate his Eighth Amendment rights by denying him adequate
medical care. (Id.) Plaintiff did not prepay the
civil filing fee required by 28 U.S.C. § 1914(a) when he
filed his complaint. Instead, he filed a motion to proceed in
forma pauperis (“IFP”) under 28 U.S.C. §
1915(a), along with motions to appoint counsel and for a
preliminary injunction. (Doc. Nos. 2–4.)
Motion to Proceed IFP
moves for leave to proceed IFP. (Doc. No. 2.) 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). The 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 Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However,
a prisoner who is granted leave to proceed IFP remains
obligated to pay the entire fee in increments and regardless
of whether his action is ultimately dismissed. See
28 U.S.C. §§ 1915(b)(1), (2); Bruce v.
Samuels, 136 S.Ct. 627, 629 (2016); Williams v.
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015); Taylor
v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
1915(a)(2) requires prisoners seeking leave to proceed IFP to
submit a “certified copy of the trust fund account
statement (or institutional equivalent) for . . . the 6-month
period immediately preceding the filing of the
complaint.” 28 U.S.C. § 1915(a)(2); see
Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005).
The Court will assess an initial payment of 20% of the
average monthly deposits in the account for the past six
months, or of 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), (b)(4). The institution with custody of the
prisoner will collect payments of 20% of the preceding
month’s income in any month where his account exceeds
$10, and forward those payments to the Court until the entire
filing fee is paid. See 28 U.S.C. § 1915(b)(2);
Bruce, 136 S.Ct. at 629.
submitted a certified prison certificate and a certified copy
of his inmate trust account statement pursuant to 28 U.S.C.
§ 1915(a)(2) and Civil Local Rule 3.2. (Doc. No. 7.)
This certificate shows that Plaintiff had no monthly deposits
and carried no balance in his trust account during the
6-month period preceding the filing of this action, and had
an available balance of zero at the time of filing.
(Id.) The Court assesses no initial partial filing
fee because Plaintiff is unable to pay any initial fee at
this time. See 28 U.S.C. § 1915(b)(4)
(“In 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.”); Bruce, 136 S.Ct. at 630;
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.”).
Court grants Plaintiff’s motion to proceed IFP and
declines to exact any initial filing fee because his prison
certificate shows he has no means to pay it. See
Bruce, 136 S.Ct. at 629. The Court directs the Secretary
of the California Department of Corrections and
Rehabilitation (“CDCR”), or his designee, to
collect the entire $350 balance of the filing fees and
forward the fees to the Clerk of the Court. See id.
Motion for Appointment of Counsel
asks the Court to appoint counsel. (Doc. No. 3.) “There
is no constitutional right to appointed counsel in a §
1983 action.” Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997). While 28 U.S.C. § 1915(e)(1)
grants the district court limited discretion to request that
an attorney represent an indigent civil litigant, this
discretion may be exercised only under “exceptional
circumstances.” Agyeman v. Corr. Corp. of Am.,
390 F.3d 1101, 1103 (9th Cir. 2004). 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.” Id. at 1103 (internal citations
Court denies Plaintiff’s request for appointed counsel
without prejudice. Nothing in the record at this stage of the
proceedings suggests he is incapable of articulating the
factual basis for his claims, and any evaluation of his
likelihood of success on the merits is premature.
Motion for Preliminary Injunction
also filed a motion for preliminary injunction pursuant to
Federal Rule of Civil Procedure 65(a). (Doc. No. 4.) Rule
65(a) provides that “the court may issue a preliminary
injunction only on notice to the adverse party.” As a
preliminary matter, Plaintiff’s motion for an
injunction does not comply with the Rule 65(a) procedural
notice requirement. Plaintiff has not demonstrated that his
complaint or his motion have been served on the named
Defendants. Thus, the Court denies without prejudice
Plaintiff’s motion for preliminary injunction.
Screening Under 28 U.S.C. §§ ...