Allen v. Diaz

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES EDWARD ALLEN, Case No.: 21cv0602-LAB (RBM) CDCR # D-76353 12 ORDER: Plaintiff, 13 (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS, v. 15 (2) DISMISSING CIVIL ACTION 16 WITHOUT PREJUDICE FOR 17 FAILING TO PREPAY FILING FEES, and 18 RALPH DIAZ, et al., 19 Defendants. (3) DENYING MOTION FOR APPOINTMENT OF COUNSEL 20 21 22 Plaintiff Charles Edward Allen, a state prisoner proceeding pro se, has filed a civil 23 rights action (ECF No. 1), along with a Motion to Proceed In Forma Pauperis (“IFP”) (ECF 24 No. 2), and a Motion for Appointment of Counsel (ECF No. 3). Plaintiff alleges that on or 25 about May 18, 2020, while incarcerated at Calipatria State Prison, he was approved for a 26 vegan religious diet, but for three weeks immediately thereafter he received no food. (ECF 27 No. 1 at 7.) 1 I. Motion to Proceed In Forma Pauperis 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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 7 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy 8 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). 11 From the certified trust account statement, the Court assesses an initial payment of 12 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 13 average monthly balance in the account for the past six months, whichever is greater, unless 14 the prisoner has no assets. See 28 U.S.C. § 1915(b)(1)&(4). Subsequent payments, 15 assessed at 20% of the preceding month’s income, are collected in any month in which his 16 account exceeds $10, and forwarded to the Court until the entire filing fee is paid. See 28 17 U.S.C. § 1915(b)(2). Prisoners who are granted leave to proceed IFP remain obligated to 18 pay the entire fee in monthly installments regardless of whether their action is ultimately 19 dismissed. Bruce v. Samuels, 577 U.S. ___, ___, 136 S.Ct. 627, 629 (2016); 28 U.S.C. 20 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 21 In support of his IFP Motion, Plaintiff has submitted a copy of his California 22 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report which 23 indicates his account balance as of the date of the statement is zero but contains only an 24 25 26 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 27 Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). 1 accounting of the monthly deposits and balances for a single month, September 2020. 2 (ECF No. 2 at 2, 7-8.) The Motion to Proceed IFP fails to comply with 28 U.S.C. 3 § 1915(a)(2) because it does not include a certified copy of his trust fund account 4 statements or an “institutional equivalent” issued by CDCR officials attesting as to his trust 5 account activity and balances for the 6-month period preceding the filing of this action. 6 See 28 U.S.C. § 1915(a)(2); S. D. Cal. CivLR 3.2.b. Without this accounting, the Court is 7 unable to fulfill its statutory duty to assess the appropriate amount of initial filing fee which 8 may be required to further prosecute this case. See 28 U.S.C. §1915(b)(1). Accordingly, 9 Plaintiff’s Motion to Proceed In Forma Pauperis is DENIED without prejudice to Plaintiff 10 to provide the Court with the proper CDCR trust account documents. 11 II. Motion for Appointment of Counsel 12 Plaintiff has also filed a Motion for Appointment of Counsel. (ECF No. 3.) He 13 states that appointment of counsel is appropriate because he cannot afford counsel and 14 because his ability to prosecute this action is reduced due to limited access to the prison 15 law library and limited legal knowledge. (Id. at 1-3.) 16 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social 17 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). While 18 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to request an attorney 19 represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 20 1103 (9th Cir. 2004), this discretion may be exercised under “exceptional circumstances,” 21 id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), and it necessarily 22 depends upon Plaintiff’s IFP status. See 28 U.S.C. § 1915(e)(1) (“The court may request 23 an attorney to represent any person unable to afford counsel.”) 24 Because Plaintiff has not been granted leave to proceed IFP pursuant to 28 U.S.C. 25 § 1915(a) and (b) in this case, he is not eligible for appointment of counsel pursuant to 26 § 1915(e)(1) at this time. Accordingly, Plaintiff’s motion is DENIED without prejudice 27 to Plaintiff to renew his request if and when he is granted leave to proceed IFP. 1 Conclusion and Order 2 (1) Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED and this action 1s 3 || DISMISSED without prejudice for failure to prepay the filing fee as required by 28 U.S.C. 4 1914(a). 5 (2) Plaintiff's Motion for Appointment of Counsel is DENIED without prejudice. 6 || (ECF No. 3.) 7 (3) Plaintiff GRANTED forty-five (45) days leave from the date this Order is 8 || filed to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete 9 || and file a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(2) and S.D. 10 || Cal. CivLR 3.2(b). The Clerk of the Court will provide Plaintiff with this Court’s approved 11 “Motion and Declaration in Support of Motion to Proceed In Forma Pauperis.” If 12 ||Plaintiff fails to either prepay the civil filing fee or complete and submit the enclosed 13 || Motion to Proceed IFP within 45 days, the Court will enter final judgment of dismissal.’ 14 IT IS SO ORDERED. 15 | Dated: June 1, 2021 □□□ A (Baw 16 Hon. Larry Alan Burns 7 United States District Judge 18 19 20 . . . . 2 2 . . * Plaintiff is cautioned that if he chooses to proceed further by either prepaying the filing 21 |! fee or proceeding IFP, his Complaint will be reviewed before service and may be dismissed 72 sponte pursuant to 28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full filing fee in advance or is granted IFP status and is obligated to 23 |! pay the full filing fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 74 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to 25 state a claim, or seeks damages from defendants who are immune); see also Rhodes v. 26 || Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a 27 governmental entity or officer or employee of a governmental entity.”’)