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Campos v. K.U.S.I. News Media

United States District Court, S.D. California

September 24, 2019

ALBERTO CAMPOS, CDCR #BE-2841, Plaintiff,
v.
K.U.S.I. NEWS MEDIA, Defendant.

          ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2] (2) DENYING MOTION TO APPOINT COUNSEL [ECF NO. 5] AND (3) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II)

          Hon.Cynthia Bashant United States District Judge

         Plaintiff Alberto Campos, currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See “Compl., ” ECF No. 1 at 1.) Plaintiff claims a San Diego news organization defamed him by failing to “tileize” his face when airing a video recording of his sentencing hearing in San Diego Superior Court on August 22, 2017. (Id. at 3–4.) He seeks $80, 000 in general and punitive damages. (Id. at 7.)

         Plaintiff has not paid the filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2). Plaintiff has also filed a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1). (ECF No. 5).

         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 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); 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.

         In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate Statement Report together with a prison certificate certified by an RJD accounting officer (ECF No. 3, at 1–3). See 28 U.S.C. § 1915(a)(2); Civ. L. R. 3.2. These statements show Plaintiff carried an average monthly balance of $6.70, had $6.67 in average monthly deposits credited to his account over the 6-month period immediately preceding the filing of his Complaint, and maintained an available balance of only $0.15 at the time of filing. (See ECF No. 3 at 1, 3.)

         Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP, (ECF No. 2) and assesses his initial partial filing fee to be $1.34 pursuant to 28 U.S.C. § 1915(b)(1). Because he had insufficient funds with which to pay that amount at the time of filing, however, the Court will direct the Secretary of the of CDCR, or his designee, to collect the initial $1.34 filing fee assessed only if sufficient funds are available in Plaintiff’s account at the time this Order is executed. 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 remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

         II. Motion to Appoint Counsel

         Plaintiff also seeks the appointment of counsel because he is indigent and unable to afford a lawyer. (See ECF No. 5, 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, this discretion may be exercised only under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); 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 Complaint 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). 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 purported claim, which does not appear to be legally complex. Agyeman, 390 F.3d at 1103. Second, for the reasons discussed more fully below, Plaintiff’s Complaint requires sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and it is simply too soon to tell whether he will be likely to succeed on the merits of any potential constitutional claim. Id.; cf. Garcia v. Smith, No. 10-cv-1187 AJB (RBB), 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (noting that even if a prisoner’s claims survive the defendants’ motion to dismiss, it may be “too early to determine the likelihood of success on the merits.”).

         Therefore, the Court finds no “exceptional circumstances” currently exist and DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 5) without prejudice on that basis. 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).

         III. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)

         A. Standard ...


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