United States District Court, S.D. California
KEVIN W. JONES, CDCR #BB-6806, Plaintiff,
RICHARD J. DONOVAN (CDCR); DANIEL PARAMO, Defendants.
1) GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS [ECF
NO. 2]; 2) DENYING MOTION FOR APPOINTMENT OF
COUNSEL [ECF NO. 3]; AND 3) DISMISSING COMPLAINT FOR FAILING
TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND
Barry Ted Moskowitz, Chief Judge, United States District
W. Jones (“Plaintiff”), currently incarcerated at
the California Medical Facility (“CMF”), in
Vacaville, California, and proceeding pro se, filed this
civil rights action in the Northern District of California on
November 17, 2017 (ECF No. 1), together with a Request to
Proceed In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 2) and a Motion to Appoint
Counsel (ECF No. 3).
Plaintiff claims prison officials at Richard J. Donovan
Correctional Facility (“RJD”) in San Diego,
California violated his constitutional rights while he was
incarcerated there, the Honorable Haywood S. Gilliam, Jr.
transferred his case to this Court for lack of proper venue
pursuant to 28 U.S.C. § 1391(b) and § 1406(a) on
December 5, 2017 (ECF No. 5).
Request 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, ___ 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 request to proceed IFP, Plaintiff has
submitted a prison certificate authorized by a CMF accounting
official and a copy of his CDCR Inmate Statement Report.
See ECF No. 2; 28 U.S.C. § 1915(a)(2); S.D.
Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These
documents shows that Plaintiff had an available balance of
zero at the time of filing. See ECF No. 2 at 5-6.
Based on this accounting, the Court GRANTS Plaintiff's
request to proceed IFP, and will assess no initial partial
filing fee pursuant to 28 U.S.C. § 1915(b)(1). 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 will further direct
the Secretary of the CDCR, or his designee, to instead
collect the entire $350 balance of the filing fee required by
28 U.S.C. § 1914 and forward it 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 for Appointment of Counsel
also requests that the Court appoint him counsel due to his
indigence. (ECF No. 3 at 1.) All documents filed pro se are
liberally construed, 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) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (internal quotations
omitted)). But there is no constitutional right to counsel in
a civil case; and Plaintiff's Complaint does not compel
that the Court exercise its limited discretion to request
than an attorney represent him pro bono pursuant to 28 U.S.C.
§ 1915(e)(1) at this stage of the case. See Lassiter
v. Dept. of Social Servs., 452 U.S. 18, 25 (1981);
Agyeman v. Corr. Corp. of America, 390 F.3d 1101,
1103 (9th Cir. 2004). Only “exceptional
circumstances” support such a discretionary
appointment. Terrell v. Brewer, 935 F.3d 1015, 1017
(9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009). Exceptional circumstances exist where there
is cumulative showing of both a likelihood of success on the
merits and a demonstrated inability of the pro se litigant to
articulate his claims in light of their legal complexity.
currently pleaded, Plaintiff's Complaint demonstrates
that while he may not be formally trained in law, he
nevertheless is fully capable of legibly articulating the
facts and circumstances relevant to his claims, which are
typical and not legally “complex.”
Agyeman, 390 F.3d at 1103. Moreover, for the reasons
discussed below, Plaintiff has yet to show he is likely to
succeed on the merits of the claims.
the Court DENIES Plaintiff's Motion for Appointment of
Counsel (ECF No. 3).
Initial Screening per 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 Williams v. King, ___ F.3d ___, 2017 WL
5180205, at *2 (9th Cir. Nov. 9, 2017) (discussing 28 U.S.C.
§ 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d
1122, 1126-27 (9th Cir. 2000) (en banc)); 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)). A complaint is “frivolous” if
it “lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 324
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 to “contain sufficient