United States District Court, N.D. California
ORDER GRANTING IN FORMA PAUPERIS STATUS; DENYING
MOTION FOR APPOINTMENT OF COUNSEL; AND DENYING MOTION FOR
PRELIMINARY INJUNCTION WITHOUT PREJUDICE
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
a California state prisoner, has filed the instant pro
se civil rights action pursuant to 42 U.S.C. §
1983. At the same time, Plaintiff has filed a motion for a
preliminary injunction, a motion for appointment of counsel,
and an application for in forma pauperis status.
Dkts. 2, 3, 4. The operative complaint in this matter is the
amended complaint. Dkt. 12.
application for in forma pauperis status is GRANTED.
Dkt. 4. The total filing fee due is $350.00. The initial
partial filing fee due for Plaintiff at this time is $1.00. A
copy of this Order and the attached instruction sheet will be
sent to Plaintiff, the Prison Trust Account Office and the
Court's Financial Office.
also requests the appointment of counsel to represent him in
this action. Dkt. 3. There is no constitutional right to
counsel in a civil case unless an indigent litigant may lose
his physical liberty if he loses the litigation. See
Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25
(1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th
Cir. 1997) (no constitutional right to counsel in § 1983
action), withdrawn in part on other grounds on reh'g
en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The
court may ask counsel to represent an indigent litigant under
28 U.S.C. § 1915 only in “exceptional
circumstances, ” the determination of which requires an
evaluation of both (1) the likelihood of success on the
merits, and (2) the ability of the plaintiff to articulate
his claims pro se in light of the complexity of the
legal issues involved. See id. at 1525; Terrell
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
1986). Both of these factors must be viewed together before
reaching a decision on a request for counsel under §
1915. See id. The Court is unable to assess at this
time whether exceptional circumstances exist which would
warrant seeking volunteer counsel to accept a pro
bono appointment. The proceedings are at an early stage
and it is premature for the Court to determine
Plaintiff's likelihood of success on the merits.
Moreover, Plaintiff has been able to articulate his claims
adequately pro se in light of the complexity of the
issues involved. See Agyeman v. Corrs. Corp. of Am.,
390 F.3d 1101, 1103 (9th Cir. 2004). Therefore, the request
for appointment of counsel at this time is DENIED. Dkt. 3.
Plaintiff's motion for a preliminary injunction (dkt. 2)
is DENIED for failure to satisfying the notice requirements
of Federal Rule of Civil Procedure 65. Prior to granting a
preliminary injunction, notice to the adverse party is
required. Fed.R.Civ.P. 65(a)(1). A motion for preliminary
injunction therefore cannot be decided until the parties to
the action are served, and they have not yet been served
here. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.
1983). “A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in
his favor, and that an injunction is in the public
interest.” Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008). A temporary
restraining order (“TRO”) may be granted without
written or oral notice to the adverse party or that
party's attorney if: (1) it clearly appears from specific
facts shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss or damage will result
to the applicant before the adverse party or the party's
attorney can be heard in opposition, and (2) the
applicant's attorney (plaintiff himself in this case, as
he proceeds pro se) certifies in writing the efforts, if any,
which have been made to give notice and the reasons
supporting the claim that notice should not be required.
Fed.R.Civ.P. 65(b). Plaintiff has not satisfied the
aforementioned requirements. Furthermore, the Court must
first screen the amended complaint for cognizable claims.
See 28 U.S.C. § 1915A(a). In its review, the
Court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See Id.
§ 1915A(b)(1), (2). Until the Court determines that the
amended complaint contains cognizable claims, Plaintiff's
motion for a preliminary injunction is premature.
Accordingly, the motion is DENIED without prejudice. Dkt. 2.
Court will conduct an initial screening of the amended
complaint in a separate written Order. In the event the
matter proceeds to briefing, Plaintiff may resubmit his
motion for a preliminary injunction after Defendants have
Order terminates Docket nos. 2, 3, and 4.
FOR PAYMENT OF PRISONER'S FILING FEE
prisoner shown as the plaintiff or petitioner on the attached
order has filed a civil action in forma pauperis in
this court and owes to the court a filing fee. Pursuant to 28
U.S.C. § 1915, the fee is to be paid as follows:
The initial partial filing fee listed on the attached order
should be deducted by the prison trust account office from
the prisoner's trust account and forwarded to the clerk
of the court as the first installment payment on the filing
fee. This amount is twenty percent of the greater of (a) the
average monthly deposits to the prisoner's account for
the 6-month period immediately preceding the filing of the
complaint/petition or (b) the average monthly balance in the
prisoner's account for the 6-month period immediately
preceding the filing of the complaint/petition.
Thereafter, on a monthly basis, 20 percent of the preceding
month's income credited to the prisoner's trust
account should be deducted and forwarded to the court each
time the amount in the account exceeds ten dollars ($10.00).
The prison trust account office should continue to do this
until the filing fee has been paid in full.
prisoner does not have sufficient funds in his/her account to
pay the initial partial filing fee, the prison trust account
office should forward the available funds, and carry the
balance forward each month until the amount is fully paid.
prisoner has filed more than one complaint, (s)he is required
to pay a filing fee for each case. The trust account office
should make the monthly calculations and payments for each
case in which it receives an order granting in forma
pauperis and these instructions.
prisoner's name and case number must be noted on each
remittance. The initial partial filing fee is due
within thirty days of the date of the attached order. Checks
should be made payable to Clerk, U.S. District Court and sent
to Prisoner Accounts Receivable, ...