Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ROBERT L. MORROW, Case No.: 3:26-CV-4250 JLS (MMP) 11 CDCR #BX8757, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING CIVIL ACTION 14 WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEE AND 15 RAFAEL ACEVEDO, Warden; FAILING TO MOVE TO PROCEED 16 R. NORIEGA, Correctional Officer; IN FORMA PAUPERIS AND E. VEGA, Correctional Officer; 17 O. DENNIS, Correctional Officer, (2) DENYING MOTION FOR 18 Defendants. APPOINTMENT OF COUNSEL 19 (ECF Nos. 1, 2) 20 21 On July 23, 2026, Plaintiff Robert L. Morrow, currently incarcerated at Richard J. 22 Donovan Correctional Facility (“RJD”) and proceeding pro se, filed a civil rights complaint 23 pursuant to 42 U.S.C. § 1983. ECF No. 1. He also moved for appointment of counsel. 24 ECF No. 2. For the reasons explained, the Court DISMISSES the action sua sponte 25 without prejudice and DENIES his Motion for Appointment of Counsel (ECF No. 2). 26 / / / 27 / / / 28 / / / 1 I. Failure to Pay Filing Fee or Request In Forma Pauperis (“IFP”) Status 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 5 although the $55 administrative fee does not apply to persons granted leave to proceed IFP. 6 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 7 Schedule, § 14 (eff. Dec. 1, 2023)). An action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). In addition, because Plaintiff is a prisoner, 11 even if he is granted leave to proceed IFP, he remains obligated to pay the entire filing fee 12 in “increments,” regardless of whether his case is ultimately dismissed. See 28 U.S.C. 13 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 14 Plaintiff has not prepaid the $405 in filing and administrative fees required to 15 commence this civil action, nor has he submitted a motion seeking permission to proceed 16 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 U.S.C. 17 § 1914(a); Andrews, 493 F.3d at 1051. 18 II. Motion for Appointment of Counsel 19 Plaintiff seeks appointment of counsel because, inter alia, he cannot afford an 20 attorney, his incarceration will limit his ability to prosecute this case, and the issues are 21 complex. ECF No. 2 at 1–2. There is, however, no constitutional right to counsel in a civil 22 case. Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 23 F.3d 965, 970 (9th Cir. 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court 24 limited discretion to “request” that an attorney represent an indigent civil litigant, this 25 discretion is exercised only under “exceptional circumstances.” Agyeman v. Corr. Corp. 26 of America, 390 F.3d 1101, 1103 (9th Cir. 2004); see also Terrell v. Brewer, 935 F.2d 27 1015, 1017 (9th Cir. 1991). And, importantly, such discretion necessarily depends upon 28 1 Plaintiff’s IFP status. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to 2 represent any person unable to afford counsel.”). 3 Because Plaintiff has not yet demonstrated he is eligible to proceed IFP pursuant to 4 28 U.S.C. § 1915(a), he cannot show he is “unable to afford counsel” as required 5 by § 1915(e)(1). Therefore, Plaintiff’s Motion for Appointment of Counsel must also 6 be DENIED. Denial is without prejudice to Plaintiff resubmitting the motion should he be 7 granted leave to proceed IFP. 8 II. Conclusion and Order 9 Accordingly, the Court: 10 (1) DISMISSES this civil action sua sponte without prejudice based on 11 Plaintiff’s failure to pay the $405 in civil filing and administrative fees or to submit a 12 motion to proceed in forma pauperis pursuant to 28 U.S.C. §§ 1914(a) and 1915(a). 13 (2) DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 2) without 14 prejudice. 15 (3) GRANTS Plaintiff forty-five (45) days’ leave from the date this Order is filed 16 to either: (a) prepay the entire $405 civil filing and administrative fee in full or (b) complete 17 and file a motion to proceed in forma pauperis, including a certified copy of his trust 18 account statement for the six-month period preceding the filing of the Complaint. See 28 19 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2(b).1 20 (4) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 21 22 1 If Plaintiff chooses to re-open the case by either prepaying the full $405 civil filing fee, or by 23 submitting a properly supported motion to proceed in forma pauperis, his Complaint will be 24 subject to an initial review and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) or 28 U.S.C. § 1915(e)(2)(B). See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc) 25 (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss 26 an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 27 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity or officer or employee of a governmental 28 | titled “Motion and Declaration in Support of Motion to Proceed IFP” for his 2 ||convenience. Should Plaintiff fail to either pay the full filing and administrative fee or 3 ||submit a properly completed motion to proceed in forma pauperis within forty-five (45) 4 days, this civil action will remain dismissed without prejudice pursuant to 28 U.S.C. § 5 || 1914(a), and without further Order of the Court. 6 (5) DIRECTS the Clerk to administratively CLOSE the file. 7 IT IS SO ORDERED. 8 ||Dated: August 25, 2026 . &£ . ? ja Janis L. Sammartino 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 a