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Armenta v. Paramo

United States District Court, S.D. California

April 5, 2017

RICHARD ARMENTA, CDCR #G-39318, Plaintiff,
v.
D. PARAMO, Warden, et al., Defendants.

         ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2] 2) DENYING MOTION TO APPOINT COUNSEL [ECF NO. 3] AND 3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE PURSUANT TO 28 U.S.C. § 1915(D) AND FED. R. CIV. P. 4(C)(3)

          HON. BARRY TED MOSKOWITZ United States District Judge

         RICHARD ARMENTA (“Plaintiff”), a prisoner at California State Prison, Sacramento (CSP-SAC) in Represa, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Together with his Complaint, Plaintiff filed a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), as well as a Motion to Appoint Counsel (ECF No. 3).

         Background

         Plaintiff claims prison officials at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, violated his Eighth and Fourteenth Amendment rights while he was incarcerated there in 2015 by charging him with, finding him guilty of, and punishing him for use of a controlled substance in violation of Cal. Code Regs., tit. 15 § 3016(a). Plaintiff claims Defendants did so with “deliberate indifference” to medical evidence showing he had been prescribed Tylenol with codeine, which he contends explained the positive urinalysis results that initiated his disciplinary proceedings. (ECF No. 1 at 8-15.) Plaintiff seeks declaratory and injunctive relief re-instating his visitation privileges in addition to compensatory and punitive damages. (Id. at 16.)

         Discussion

         A. IFP Motion

         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.[1] 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, __ S.Ct. __, 136 S.Ct. 627, 629 (U.S. 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).

         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); 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.

         In support of his IFP motion, Plaintiff has submitted a copy of his CDCR Inmate Statement Report and a certificate issued by a CSP-SAC accounting clerk attesting to his balances and deposits over the 6-month period preceding the filing of his Complaint. (ECF No. 2 at 3-5); 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show that while Plaintiff has had a monthly average of $94.17 deposited to his account, and has carried an average balance of $28.12, his available balance at the time of filing was zero (ECF No. 2 at 5). 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.”).

         Therefore, the Court grants Plaintiff leave to proceed IFP, declines to exact the $18.83 initial filing fee assessed pursuant to 28 U.S.C. § 1915(b)(1) because his trust account statement shows he “has no means to pay it, ” Bruce, 136 S.Ct. at 629; 28 U.S.C. § 1915(b)(4), and directs the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) 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). See id.

         B. Motion to Appoint Counsel

         Plaintiff also asks the Court to appoint counsel for him because he is indigent, incarcerated, “unable to read or write, ” and because “a trial in this case will likely involve conflicting testimony, ” and he believes “counsel would better enable [him] to present evidence and cross examine witnesses.” (ECF No. 3 at 1.)

         However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social 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 America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion is exercised only in “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 ...


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