United States District Court, S.D. California
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 13] 2)
DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND U.S. MARSHAL
SERVICE [ECF Nos. 24, 26] AND 3) DISMISSING CIVIL ACTION FOR
FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §
1915(e)(2) AND § 1915A(b)
M. Sabraw United States District Judge
JOHN ADAMS, Jr. (“Plaintiff”), a state prisoner
proceeding pro se, initially filed this civil action pursuant
to 42 U.S.C. § 1983 in the Northern District of
California in November 2016 (ECF No. 1).
Complaint raises claims related to a 1988 arrest and
subsequent criminal prosecution in San Diego Superior Court.
The sole Defendant is alleged to be a Detective employed by
the San Diego County Sheriff's Department. United States
Magistrate Judge Nandor J. Vadas found the case was filed in
an improper venue and transferred it to the Southern District
of California pursuant to 28 U.S.C. §§ 1391(b) and
1406(a) (ECF No. 16). Judge Vadas did not rule on
Plaintiff's pending Motion to Proceed In Forma Pauperis
(ECF No. 13) prior to transfer. Nor did he conduct a
preliminary screening of Plaintiff's Complaint pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A.
has since filed a Motion for Appointment of Counsel (ECF No.
26) and a Motion requesting service by U.S. Marshal and
discovery (ECF No. 24). He has also submitted various
documents in support of these pending motions (ECF Nos. 20,
22, 28, 30, 32, 36, 38, 40).
Motion to Proceed In Forma Pauperis
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 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) & (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 Inmate Statement Report and a prison certificate
certified by a trust account official at his prison.
(See ECF No. 13 at 5-8.) These statements show
Plaintiff had an average monthly balance of $31.50 and
average monthly deposits of $16.50 in his account over the
6-month period prior to the filing of his Complaint.
(See ECF No. 13 at 6.) However, he had an available
balance of zero at the time of filing. Id. Thus, the
Court assesses Plaintiff's initial partial filing fee to
be $6.30 pursuant to § 1915(b)(1), but acknowledges he
may be unable to pay that minimal 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 the initial partial
filing fee.”); Taylor, 281 F.3d at 850
(finding § 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. 13), but declines to exact any initial filing fee because
his prison certificate indicates he may have “no means
to pay it.” 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 required by § 1914. See Id. The Secretary
shall then forward them to the Clerk of the Court pursuant to
the installment payment provisions set forth in §
1915(b)(1). See id.
Motion for Appointment of Counsel
Plaintiff has filed a motion requesting an appointment of
“learned counsel knowledgeable in multiple civil
matters/lawsuits, seven or more depending on
discovery.” (ECF No. 26.) Plaintiff requests counsel be
appointed to assist him because he is a “novice”
and layman at law, has limited time in the law library, and
“lack[s] … skill to operate a computer[.]”
(ECF No. 26 at 1, ECF No. 32 at 10, ECF No. 36 at 1).
pleadings are “liberally construed.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (internal citations
and quotation marks omitted). “[A] pro se complaint,
however inartfully pleaded, ” is held to less stringent
standards than formal pleadings drafted by lawyers.”
there is no constitutional right to counsel in a civil case.
Lassiter v. Dep't. of Social Services, 452 U.S.
18, 25 (1981). While district courts have discretion to
appoint counsel to 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. 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)).
on these standards, the Court DENIES Plaintiff's Motion
for Appointment of Counsel (ECF No. 26) without prejudice.
Plaintiff appears capable of articulating the factual basis
for his unlawful search, false arrest, and perjured testimony
claims. Nevertheless, there is no likelihood he can succeed
on the merits of these claims because they are clearly
untimely and fall within the “core of habeas corpus,
” not § 1983. See Agyeman, 390 F.3d at
1103; Kimber v. Grant, No. 316CV01472BENAGS, 2017 WL
902139, at *3 (S.D. Cal. Mar. 6, 2017) (finding no likelihood
of success requiring appointment of counsel pursuant to
§ 1915(e)(1) where face of complaint showed
plaintiff's claims barred by statute of limitations);
Preiser v. Rodriguez, 411 U.S. 475, 486 (1973)
(history of the writ of habeas corpus makes clear that it
“has been accepted as the specific instrument to ...