United States District Court, S.D. California
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.
MICHAEL M. AMLLO, UNITED STATES DISTRICT JUDGE
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.
Motion to Proceed IFP
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
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).
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.”).
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).
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.
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. ¶¶
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
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.
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.
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).
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).
Screening of Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
Standard of Review
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)).
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 ...