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Ochoa v. Lintig

United States District Court, S.D. California

June 25, 2019

BARRY ERNEST OCHOA, CDCR #AN-2773, Plaintiff,
v.
FEDERICKA VON LINTIG; L. CARMICHAEL; R. MADDEN; RALPH M. DIAZ; JOHN DOE #1; JOHN DOE #2 Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; [DOC. NO. 10] DENYING MOTION TO APPOINT COUNSEL; [DOC. NO. 11] GRANTING MOTION FOR LEAVE TO FILE EXCESS PAGES; [DOC. NO. 12] DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C. § 1915A(B)

          HON. MICHAEL M. AMLLO, UNITED STATES DISTRICT JUDGE

         Plaintiff Barry Ernest Ochoa, a prisoner incarcerated at Correctional Training Facility located in Soledad, California and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's initial complaint was stricken by the Court for failing to comply with the Court's General Order 653A. See Doc. No. 4. However, the Court later permitted Plaintiff to file a First Amended Complaint (“FAC”) which is now the operative pleading. See Doc. No. 9. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), a Motion for Leave to File Excess Pages, and a Motion to Appoint Counsel. See Doc. Nos. 10, 11, 12.

         I. Motion to Proceed 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. See 28 U.S.C. § 1914(a). An action may proceed despite the 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 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the entire fee in installments, 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).

         Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy of the trust fund account statement (or institutional equivalent) for . . . the six-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 the prisoner's account exceeds $10, and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

         In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate trust account statement. See Doc. No. 10 at 7-8. Plaintiff's statement shows that he had no available funds to his credit at the time of filing. 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 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.”).

         Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP (Doc. No. 10) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees due for this case must be collected by the California Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

         II. Motion to File Excess Pages

          Because Plaintiff was incarcerated at Centinela State Prison (“CEN”) at the time of filing, S.D. Cal. General Order 653A applies to his initial pleadings. General Order 653Asets out procedures whereby the U.S. District Court for the Southern District of California, in conjunction with the California Department of Corrections and Rehabilitation (“CDCR”), adopted a pilot program at CEN requiring that prisoners incarcerated there who wish to file § 1983 actions IFP submit their initial filings electronically with the Clerk of the Court. Any initial documents subject to General Order 653A that are received by the Clerk but which do not comply with General Order 653, are “accepted by the Clerk of Court for filing and docketed, but may be stricken by Court order as authorized by Local Civil Rule 83.1.” See S.D. Cal. Gen. Order 653A ¶ 2.

         General Order 653A also provides, in pertinent part, that “the Court will enforce Local Civil Rule 8.2(a), which prohibits pro se complaints [filed] by prisoners from exceeding twenty-two (22) pages, consisting of the [Court's] seven (7) page form [§ 1983] complaint, plus no more than fifteen additional pages.” Id. ¶ 4. CEN prisoners subject to both General Order 653A and S.D. Cal. CivLR 8.2(a) may also file a motion to increase this page limit, but each must “demonstrate his or her need to exceed the page limitation.” Id. ¶¶ 6, 7.

         Pro se litigants are generally bound to comply with the Court's Local Rules and any order of the Court. See S.D. Cal. CivLR 83.11.a (“Any person appearing propria persona is bound by these rules of court and by the Fed.R.Civ.P. or Fed. R. Crim. P. as appropriate.”); see also S.D. Cal. CivLR 83.1.a (“Failure of counsel or of any party to comply with these rules, with the Federal Rules of Civil or Criminal Procedure, or with any order of the court” may result in sanctions, including dismissal).

         In this matter, while Plaintiff has filed voluminous exhibits, his FAC is only twenty-two (22) pages including the Court's form § 1983 complaint. Thus, while the added exhibits could be construed to violate the Court's Local Rules, the Court GRANTS Plaintiff's Motion for Leave to File Excess Pages (Doc. No. 12) and declines to exercise its discretion to strike his non-compliant pleading pursuant to S.D. Cal. CivLR 83.1. See S.D. Cal. Gen. Order 653A.

         III. Motion to Appoint Counsel

          Plaintiff also seeks the appointment of counsel because he is unable to afford a lawyer and claims his imprisonment will limit his ability to litigate. Plaintiff further contends that an eventual trial will likely involve conflicting testimony and evidence that trained counsel will be better able to evaluate and present. See Doc. No. 11 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 may be exercised only under “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 unable to articulate his claims in light of the complexity of the legal issues involved.'” Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970).

         As currently pleaded, Plaintiff's FAC demonstrates neither the likelihood of success nor the legal complexity required to support the appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer¸560 F.3d at 970. First, while Plaintiff may not be formally trained in law, his allegations, as liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully capable of legibly articulating the facts and circumstances relevant to his Eighth Amendment claim which is not legally “complex.” Agyeman, 390 F.3d at 1103. Second, for the reasons discussed more fully below, Plaintiff's FAC requires sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and it is simply too soon to tell whether he will be likely to succeed on the merits of any potential constitutional claim against either named Defendant. Id. As such, the Court finds no “exceptional circumstances” currently exist and DENIES Plaintiff's Motion to Appoint Counsel (Doc. No. 11) without prejudice. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel where prisoner could articulate his claims in light of the complexity of the issues involved, and did not show likelihood of succeed on the merits).

         IV. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         A. Standard of Review

         Because Plaintiff is a prisoner and is proceeding IFP, his FAC 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, 875 F.3d 500, 502 (9th Cir. 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)).

         “The 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)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain sufficient ...


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