United States District Court, S.D. California
1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2]
2) DENYING MOTION TO APPOINT COUNSEL [Doc. No. 5] AND 3)
DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2) AND § 1915A(b)
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.
Christopher Landon Bustin, is a pretrial detainee at the
Vista Detention Facility. He has filed a complaint pursuant
to 42 U.S.C. § 1983, and requests leave to proceed in
forma pauperis (“IFP”) and the appointment of
counsel pursuant to 28 U.S.C. §§ 1915(a) and (e)(1)
(Doc. Nos. 2, 5). Because Plaintiff’s motion to proceed
IFP complies with 28 U.S.C. § 1915(a)(2), the Court
grants him leave to proceed without full prepayment of the
civil filing fees required by 28 U.S.C. § 1914(a), but
denies his motion for appointment of counsel and dismisses
his complaint for failing to state a claim pursuant to 28
U.S.C. § 1915(e)(2) and § 1915A(b).
Plaintiff’s Motion to Proceed In Forma
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);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). However, a prisoner who is granted leave to proceed
IFP remains obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, 136 S.Ct. 627, 629 (2016);
Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.
2015), and regardless of whether his action is ultimately
dismissed. See 28 U.S.C. § 1915(b)(1) &
(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th
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); 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 his
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); Bruce, 136 S.Ct. at 629.
support of his IFP motion, Plaintiff has submitted a copy of
his San Diego Sheriff’s Department inmate trust account
activity. See Doc. No. 2 at 5; 28 U.S.C. §
1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d
at 1119. This statement shows that he is unable to pay any
initial fee at this time. 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
[a] 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 leave to proceed IFP, declines to
“exact” any initial filing fee because his trust
account statement shows he “has no means to pay it,
” Bruce, 136 S.Ct. at 629, and directs the
Watch Commander at the Vista Detention Facility to collect
the entire $350 balance of the filing fees required by 28
U.S.C. § 1914 and forward them to the Clerk of the Court
pursuant to the installment payment provisions set forth in
28 U.S.C. § 1915(b)(1). See id.
Motion to Appoint Counsel
also asks the Court to appoint counsel in this matter. (Doc.
No. 5.) There is no constitutional right to counsel in a
civil case. Lassiter v. Dep’t of Soc. Servs.,
452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d
965, 970 (9th Cir. 2009). And while 28 U.S.C. §
1915(e)(1) grants the district court limited 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 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 the Court “to consider whether
there is a ‘likelihood of success on the merits’
and whether ‘the prisoner is unable to articulate his
claims in light of the complexity of the legal issues
involved.’” Harrington v. Scribner, 785
F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560
F.3d at 970).
Court denies Plaintiff’s request without prejudice
because nothing in either Plaintiff’s complaint or his
motion suggests he is incapable of articulating the factual
basis for his inadequate medical care claims. However, at
this initial stage of the pleadings, any evaluation of
Plaintiff’s likelihood of success on the merits is
premature. Id. Therefore, the Court finds no
exceptional circumstances justify the appointment of counsel
at this time.
Legal Standards for Screening Complaint Pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)
Plaintiff is a prisoner and is proceeding IFP, his complaint
requires a pre-answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner’s IFP
complaint, or any portion of it, which is frivolous,
malicious, fails to state a claim, or seeks damages from
defendants who are immune. See Lopez v. Smith, 203
F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28
U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621
F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §
1915A(b)). “The purpose of [screening] is ‘to
ensure that the targets of frivolous or malicious suits need
not bear the expense of responding.’”
Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.
2014) (quoting Wheeler v. Wexford Health Sources,
Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me