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Adams v. Stables

United States District Court, S.D. California

May 11, 2017

EZRA JOHN ADAMS, Jr., CDCR #H-27409, Plaintiff,
v.
MARY STABLES, Detective, Defendant.

         1) 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)

          Dana M. Sabraw United States District Judge

         EZRA 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).

         Plaintiff's 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.

         Plaintiff 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).

         I. Motion to Proceed In Forma Pauperis (“IFP”)

         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 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 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) & (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 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.”).

         Therefore, 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.

         II. 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).

         Plaintiff's 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.” Id.

         However, 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)).

         Based 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 ...


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