United States District Court, S.D. California
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)
John A. Houston United States District Judge
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.)
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).
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 of
$400. 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.
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.
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.
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).
Motion to Appoint Counsel
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).
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).
nothing in Plaintiff's Complaint suggests he is incapable
of articulating the factual basis for his claims, which are
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.
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).
the Court finds no “exceptional circumstances”
exist at this preliminary stage of the case and
DENIES Plaintiff's Motion to Appoint