United States District Court, S.D. California
ORDER 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
[ECF NO. 11] 2) DENYING MOTION FOR APPOINTMENT OF COUNSEL
[ECF NO. 15] AND 3) DISMISSING CLAIMS FOR PURSUANT TO 28
U.S.C. § 1915(E)(2) AND § 1915A(B)
Dana M. Sabraw United States District Judge
Gray (“Plaintiff”), currently incarcerated at the
San Diego Central Jail (“SDCJ”) in San Diego,
California, and proceeding pro se, has filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).
Plaintiff has also filed a Motion for Appointment of Counsel
(ECF No. 15), a “Motion for Sanctions for Being Denied
Access to Court” (ECF No. 6), a “Motion to Add
Defendant(s) to Complaint” (ECF No. 10), a
“Motion Requesting Leave to File Amended Complaint and
Motion for Leave to Proceed In Forma Pauperis” (ECF No.
17), as well as a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF
addition, before the Court could conduct the required sua
sponte screening, Plaintiff filed a First Amended Complaint
(“FAC”) which is now the operative pleading. (ECF
Motion to Proceed IFP
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, ___ U.S. ___, 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 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); 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 prison
certificate authorized by a SDCJ administrative sergeant
attesting to his trust account activity. See ECF No.
17 at 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. This statement shows that
Plaintiff's current available balance is only $1.61.
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.”); 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 (ECF
No. 11), 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 SDCJ to instead 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). /
Motion to Appoint Counsel
seeks appointment of counsel to assist him in this matter.
(ECF No. 15.) However, there is no constitutional right to
counsel in a civil case. Lassiter v. Dept. of Social
Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C.
§ 1915(e)(1), district courts have some limited
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 rarely exercised and 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).
these factors to Plaintiff's case, the Court DENIES his
Motion to Appoint Counsel because a liberal construction of
his original pleadings shows he is capable of articulating
the factual basis for his claims. All documents filed by pro
se litigants are construed liberally, and “a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Moreover, Fed.R.Civ.P. 8(e) requires that
“[p]leadings . . . be construed so as to do
justice.” The pleadings filed by Plaintiff to date
demonstrate that while Plaintiff may not be a trained in law,
he is capable of legibly articulating the facts and
circumstances relevant to his claims, which are typical,
straightforward, and not legally “complex.”
Agyeman, 390 F.3d at 1103. Therefore, neither the
interests of justice nor any exceptional circumstances
warrant the appointment of counsel in this case at this time.
LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987);
Terrell, 935 F.2d at 1017.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
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”