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Thomas-Weisner v. Gipson

United States District Court, S.D. California

January 8, 2020

JONQUIL THOMAS-WEISNER, CDCR #AR-5757, Plaintiff,
v.
CONNIE GIPSON; PATRICK COVELLO; LANCE ESHELMAN; M. VOONG, Defendant.

          ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 2) DENYING MOTION TO APPOINT COUNSEL; 3) DISMISSING DEFENDANTS GIPSON AND VOONG FOR FAILING TO STATE A CLAIM; AND 4) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND Fed.R.Civ.P. 4(c)(3)

          Hon. John A. Houston United States District Judge

         Jonquil Thomas-Weisner (“Plaintiff”), currently incarcerated at Centinela State Prison (“CEN”) located in Imperial, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff alleges Defendants violated his First Amendment rights and rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by revoking his right to receive a religious diet when he was previously housed at the Richard J. Donovan Correctional Facility (“RJD”). (Id. at 4-5.)

         Plaintiff did not prepay the civil filing 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. 3).

         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). However, prisoners who are granted leave to proceed IFP remain 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 their 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) also 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 as well as a Prison Certificate completed by a trust account official. 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. These documents show Plaintiff carried an average monthly balance of $395.56 and maintained $230.38 in average monthly deposits to his trust account for the 6-months preceding the filing of this action. See ECF No. 3 at 1.

         Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) and assesses his initial partial filing fee to be $79.11 pursuant to 28 U.S.C. § 1915(b)(1). The Court further directs the Secretary of the CDCR, or his 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 also seeks the appointment of counsel. (ECF No. 3.) 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).

         The Court agrees that pro se litigants may be better served with the assistance of counsel-but that is not the test. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (affirming denial of counsel based on claims that pro se plaintiff “may well have fared better-particularly in the realms of discovery and the securing of expert testimony.”), withdrawn in part on reh'g en banc and overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). “Concerns regarding investigation and discovery are … not exceptional factors, ” and while a pro se litigant “may not have vast resources or legal training, ” these are simply among the commonly shared “types of difficulties encountered by many pro litigants.” Wells v. Washington State Dep't of Corr., No. C13-234 RJB/KLS, 2013 WL 4009076, at *1 (W.D. Wash. Aug. 5, 2013).

         Here, nothing in Plaintiff's Complaint suggests he is incapable of articulating the factual basis for his claims, which are “relatively straightforward.” Harrington, 785 F.3d at 1309. In fact, the Court finds, based on its initial screening of Plaintiff's Complaint under the standards of review discussed below, that he has pleaded sufficient factual content to state a plausible claim for relief.

         In addition, while Plaintiff may have sufficiently pleaded claims at this preliminary stage of the proceedings, he has yet to demonstrate and it is too soon to tell whether there is a likelihood of success on the merits. Harrington, 785 F.3d at 1309; 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, but did not show likelihood of succeed on the merits).

         Therefore, the Court finds no “exceptional circumstances” exist at this preliminary stage of the case and DENIES Plaintiff's Motion to Appoint ...


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