Alvarez v. Ko

          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 SERVICE

          MARILYN L. HUFF, DISTRICT JUDGE

         On May 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.)

         Plaintiff 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.)

         A. Motion to Proceed IFP

         Plaintiff 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).^[1] 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).

         Section 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.

         Plaintiff 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.”).

         The 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.

         B. Motion for Appointment of Counsel

         Plaintiff 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 omitted).

         The 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.

         C. Motion for Preliminary Injunction

         Plaintiff 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.

         D. Screening Under 28 U.S.C. §§ ...