Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RALPHAEL JASSO, Case No.: 26-cv-3732-AJB-GC CDCR #H-86397 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS SERGEANT FLORES and DOES 1–3, 15 (Doc. No. 2); Defendants. 16 (2) DENYING MOTION TO 17 APPOINT COUNSEL (Doc. No. 3);

18 (3) DISMISSING COMPLAINT FOR 19 FAILURE TO STATE A CLAIM 20 Plaintiff Ralph Jasso is a state prisoner proceeding pro se with a civil rights 21 Complaint pursuant to 42 U.S.C. § 1983 accompanied by a Motion to Proceed In Forma 22 Pauperis (“IFP”). (Doc. Nos. 1–2.) Plaintiff has also filed a Motion to Appoint Counsel, a 23 Supplemental Document, and a Letter. (Doc. Nos. 3–5.) 24 I. MOTION TO PROCEED IFP 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 28 1 although the administrative fee does not apply to persons granted leave to proceed IFP. 2 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 3 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 4 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 5 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner 6 seeking leave to proceed IFP must submit a “certified copy of the trust fund account 7 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 8 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 9 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial 10 payment of 20% of (a) the average monthly deposits in the account for the past six months, 11 or (b) the average monthly balance in the account for the past six months, whichever is 12 greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1)&(4); Bruce 13 v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining 14 balance in “increments” or “installments,” regardless of whether their action is ultimately 15 dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 16 In support of his IFP motion, Plaintiff has submitted a copy of his trust account 17 statement attested to by a CDCR trust account official. (Doc. No. 2 at 4.) The document 18 shows he had an average monthly balance of $0.29 and average monthly deposits of $0.00, 19 with an available balance of $0.00. (Id.) The Court GRANTS Plaintiff’s motion to proceed 20 IFP and assesses no initial partial filing fee. See Taylor v. Delatoore, 281 F.3d 844, 850 21 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 22 dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of 23 funds available to him when payment is ordered.”) Plaintiff remains obligated to pay the 24 $350 fee pursuant to the installment provisions of 28 U.S.C. § 1915(b)(1). 25 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 26 A. Standard of Review 27 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a 28 pre-Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must 1 sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 2 malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez 3 v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); 4 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 9 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 10 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 11 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 12 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 13 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 14 B. Allegations in the Complaint 15 Plaintiff alleges that on June 6, 2002, he was arrested at a McDonald’s restaurant in 16 San Ysidro, California, for attempting to make a terrorist threat. (Doc. No. 1 at 3.) He 17 claims the Defendants, four arresting officers, removed him from the restaurant bathroom 18 by force, hit him, verbally abused him, used taxi drivers as Spanish-English translators to 19 speak to him despite speaking Spanish themselves, and took him to the San Diego Jail. (Id. 20 at 3–4.) On June 7, 2003, he was found guilty by a jury, and on June 14, 2003, he was 21 sentenced to six years in prison. (Id. at 3.) 22 Plaintiff alleges that during the trial proceedings he was not permitted a Spanish 23 language interpreter and was never allowed to speak in open court, and that the San Diego 24 County Sheriff incorrectly used June 14, 2004, as the sentencing date to calculate his 25 release date. (Id. at 3–4.) About two months before he was arrested, two police informants 26 told the Defendants, who “are doing illegal drugs and immigrant business,” that Plaintiff 27 was involved in selling drugs, and Defendants told the informants to kill Plaintiff, which 28 they tried to do by stabbing him. (Id. at 4.) Plaintiff claims that because “they cannot kill 1 me” they put him in prison to cover up the police misconduct, and requests the Court open 2 an investigation into police corruption and his false arrest. (Id.) Plaintiff claims violations 3 of his Fifth Amendment double jeopardy rights, his Eighth Amendment right to be free 4 from cruel and unusual punishment, and his Fourteenth Amendment right to due process. 5 (Id. at 3–5.) 6 C. Discussion 7 Plaintiff’s claims relating to his 2002 arrest and conviction, having occurred nearly 8 25 years ago, are well outside the statute of limitations for a 42 U.S.C. § 1983 claim. See 9 U.S. ex rel. Air Control Techs., Inc. v. Pre Con Induss., Inc., 720 F.3d 1174, 1178 (9th Cir. 10 2013) (a claim may be dismissed as untimely “when the running of the statute (of 11 limitations) is apparent on the face of the complaint.”) The statute of limitations for a cause 12 of action under 42 U.S.C. § 1983 is the statute of limitations established by the forum state 13 for personal injury torts. Wallace v. Kato, 549 U.S. 384, 387 (2007). The statute of 14 limitations for a 42 U.S.C. § 1983 claim brought in California is two years, with a potential 15 additional two years of tolling while a prisoner is incarcerated. See Cal. Code Civ. Proc. 16 § 335.1 (establishing a two-year statute of limitations for personal injury actions); Soto v. 17 Sweetman, 882 F.3d 865, 871–72 (9th Cir. 2018) (when a federal court applies the forum 18 state’s statute of limitations, the court also applies the forum state’s tolling rules); Cal. 19 Code Civ. Proc. § 352.1(a) (providing for tolling up to a maximum of two years for 20 plaintiffs incarcerated for terms of less than life). It is clear that Plaintiff’s claims are well 21 outside the applicable statute of limitations. 22 In addition, Plaintiff previously filed a complaint raising these same claims, which 23 was also dismissed as barred by the statute of limitations. See Order filed 9/24/24 [Doc. 24 No. 11] in Jasso v. Flores, et al., So.Dist.Ca. Civil Case No. 24-cv-0615-JAH-MMP. In 25 fact, the Complaint in this case is a photocopy of the complaint in the previous case. 26 Compare id., Compl. filed 3/28/24 [Doc. No. 1 at 1–4] with Doc. No. 1 at 4–7. A prisoner’s 27 complaint is subject to sua sponte dismissal under 28 U.S.C. § 1915A(b)(1) if it “merely 28 repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 1 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)). 2 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a plausible claim 3 for relief and is subject to sua sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) & 4 1915A(b). Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121; Cato, 70 F.3d at 1105 5 n.2. Because it is absolutely clear Plaintiff is unable to state a claim, leave to amend is 6 denied. See Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th 7 Cir. 2002) (recognizing futility of amendment as a proper basis for dismissal without leave 8 to amend). 9 III. MOTION TO APPOINT COUNSEL 10 Plaintiff requests appointment of counsel to assist him in this case. (Doc. No. 3.) 11 There is no constitutional right to counsel in a civil case, and the decision to appoint counsel 12 under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial court and is granted 13 only in exception circumstances.” Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 14 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (noting that 15 only “exceptional circumstances” support such a discretionary appointment). Such 16 exceptional circumstances exist where there is cumulative showing of both a likelihood of 17 success on the merits and an inability of the pro se litigant to articulate his claims in light 18 of their legal complexity. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 19 Plaintiff has shown neither a likelihood of success on the merits of his claims nor an 20 inability to articulate them. Accordingly, the Motion to Appoint Counsel is DENIED. 21 IV. CONCLUSION AND ORDERS 22 For the reasons explained, the Court: 23 1. GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2); 24 2. DENIES Plaintiff’s Motion to Appoint Counsel (Doc. No. 3); 25 3. DIRECTS the Secretary of the CDCR, or his designee, to collect from 26 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 27 payments from his account in an amount equal to twenty percent (20%) of the preceding 28 month’s income and forwarding those payments to the Clerk of the Court each time the 1 ||}amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2); 2 4. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 3 Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 4 || P.O. Box 942883, Sacramento, California, 94283-0001; and 5 5. DISMISSES Plaintiff's Complaint for failing to state a claim upon which 6 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)G1) & 1915A(b)(1) without 7 || leave to amend. The Clerk of Court will enter a final judgment and close the file. 8 IT IS SO ORDERED. 9 || Dated: July 26, 2026 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 a □□