Opinion

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 JOHN E. MITCHELL, Case No.: 26-cv-02421-AJB-AHG CDCR #H38255, 15 ORDER: Plaintiff, 16 v. (1) DISMISSING CIVIL ACTION 17 WITHOUT PREJUDICE FOR

18 FAILURE TO PAY FILING FEE

REQUIRED BY 28 U.S.C. § 1914(a); 19 UNITE THE PEOPLE, INC.; AND MICHAEL R. HAYDEN; CRYSTAL 20 MORGAN; TRAVIELLE POPE; (2) DENYING MOTION TO 21 KYLAH DUVENARY, APPOINT COUNSEL 22 Defendant. (Doc. No. 2) 23 24 Plaintiff John E. Mitchell, proceeding pro se and currently incarcerated at Valley 25 State Prison, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Doc. No. 26 1.) Plaintiff also moves for appointment of counsel. (Doc. No. 2.) For the reasons 27 explained, the Court dismisses the action sua sponte without prejudice and denies his 28 motion for appointment of counsel. 1 I. Failure to Pay Filing Fee 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 in 6 forma pauperis (“IFP”). See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, 7 District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). An action may proceed despite 8 a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP 9 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 10 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners, however, “face 11 an additional hurdle.” Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th 12 Cir. 2011). To further “the congressional goal of reducing frivolous prisoner litigation in 13 federal court,” prisoners cannot proceed IFP once they “have, while incarcerated, on 3 or 14 more prior occasions had claims dismissed due to their frivolity, maliciousness, or failure 15 to state a claim.” Tierney v. Kupers, 128 F.3d 1310, 1311–12 (9th Cir. 1997) (cleaned up); 16 see also 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action under this 17 section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in 18 any facility, brought an action or appeal . . . that was dismissed on the grounds that it is 19 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 20 prisoner is under imminent danger of serious physical injury.”). 21 Here, Plaintiff has at least three prior strikes. See Mitchell v. Allison, No. 22 21-cv-00138-TWR-LL (S.D. Cal. Mar. 18, 2021) (Doc. No. 4) (order denying motion to 23 proceed IFP as barred by 28 U.S.C. § 1915(g)); id. at *4 (listing strikes accrued upon 24 dismissal for failure to state a claim in Mitchell v. Marshall, No. 2:10-cv-07351-UA-SH 25 (C.D. Cal.); Mitchell v. Marshall, No. 2:12-cv-02048-ABC-SH (C.D. Cal.); and Mitchell 26 v. Norton, et al., No. 1:12-cv-00331-GSA (E.D. Cal.)). 27 As such, Plaintiff would be ineligible to proceed IFP unless he can meet the 28 “imminent danger of serious physical injury” exception under 28 U.S.C. § 1915(g). 1 Imminent danger requires an allegation that a harm is “ready to take place” or “hanging 2 threateningly over one’s head.” Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) 3 (cleaned up). It “cannot be triggered solely by complaints of past injury or generalized fears 4 of possible future harm.” Hernandez v. Williams, No. 21-cv-347-MMA-KSC, 2021 WL 5 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (cleaned up). Nothing in Plaintiff’s complaint 6 plausibly suggests he faceds imminent danger attributable to the defendants at the time of 7 filing. See Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022) (noting that § 1915(g)’s imminent 8 danger exception “functions as a limited safety valve for a prisoner who has exhausted his 9 three strikes but nevertheless faces imminent danger stemming from the violations of law 10 alleged in his complaint” (emphasis added)). Instead, Plaintiff contends he was “duped” 11 and “victimized” by attorneys who allegedly failed to honor a contract for legal services in 12 a prior civil action. (Doc. No. 1 at 9–10.) 13 Therefore, because Plaintiff has not prepaid the $405 in filing and administrative 14 fees required to commence this civil action and is no longer entitled to the privilege to 15 proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g), his case cannot yet proceed. 16 See 28 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 17 II. Motion for Appointment of Counsel 18 Plaintiff also seeks appointment of counsel, claiming he is likely to succeed on the 19 merits. (Doc. No. 2 at 1.) There is, however, no constitutional right to counsel in a civil 20 case. Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 21 965, 970 (9th Cir. 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited 22 discretion to “request” that an attorney represent an indigent civil litigant, this discretion is 23 exercised only under “exceptional circumstances.” Agyeman v. Corr. Corp. of America, 24 390 F.3d 1101, 1103 (9th Cir. 2004); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 25 Cir. 1991). And, importantly, such discretion necessarily depends upon Plaintiff’s IFP 26 status. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any 27 person unable to afford counsel.”). 28 Because Plaintiff has not demonstrated he is eligible to proceed IFP pursuant to 28 1 ||]U.S.C. § 1915(a), he cannot show he is “unable to afford counsel” as required by 2 || § 1915(e)(1). The Court, moreover, has reviewed Plaintiff's Complaint and does not find 3 ||that exceptional circumstances justify appointment of counsel. Therefore, Plaintiff's 4 || Motion for Appointment of Counsel must also be DENIED. 5 Conclusion and Order 6 Accordingly, the Court: 7 (1) DISMISSES this civil action sua sponte without prejudice based on 8 || Plaintiff's failure to pay the $405 in civil filing and administrative fees; 9 (2) DENIES Plaintiffs Motion to Appoint Counsel (Doc. No. 2); and 10 (3) GRANTS Plaintiff 45 days’ leave from the date this Order is filed to prepay 11 || the entire $405 civil filing and administrative fee in full. See 28 U.S.C. § 1915(a)(2); S.D. 12 || Cal. Civ. L.R. 3.2(b). 13 Should Plaintiff fail to pay the full $405 filing and administrative fee within 45 days, 14 || this civil action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), 15 |} and without further Order of the Court. 16 IT IS SO ORDERED. 17 ||Dated: September 18, 2026 19 United States District Judge 20 21 22 23 24 25 26 27 28 4 a