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Williams v. Pollard

United States District Court, S.D. California

December 19, 2019

JOSEPH L. WILLIAMS, CDCR #G-17552, Plaintiff,
v.
M. POLLARD; J. CARIMAN; SGT. R. MARIENTES; ONE UNKNOWN SERGEANT; SGT. GODINEZ, Defendants.

         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) AND 28 U.S.C. § 1915A(B)

          Hon. Larry Alan Burns, Chief Judge United States District Court

         Joseph L. Williams (“Plaintiff”), a state inmate currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) located 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.)

         Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), along with a Motion to Appoint Counsel (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 who is 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).

         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).

         In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized by a CDCR trust account official attesting to his account activity. See ECF No. 3 at 1-4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This certificate shows Plaintiff had average monthly deposits of $19.42, carried an average monthly balance of $20.85 over the 6-month period preceding the filing of his Complaint, and retained an available balance of $8.69 at the time of filing. See ECF No. 3 at 1.

         Based on this accounting, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) and assesses an initial partial filing fee of $4.17 pursuant to 28 U.S.C. § 1915(b)(1). The Court will direct the Secretary of the CDCR, or their designee, to collect this initial filing fee 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.”); 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 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 claims that he is “unable to afford counsel” and his “imprisonment will greatly limit his ability to litigate.” (Pl.'s Mot., ECF No. 5 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 none of Plaintiff's pleadings to date demand 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. Id.

         As 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 he alleges in this matter. Id. Therefore, the Court DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 5).

         II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

         A. Stand ...


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