-POR Miller v. Lamontagne et al, No. 3:2010cv00702 - Document 7 (S.D. Cal. 2010)
Court Description: ORDER granting 2 Plaintiff's Motion for Leave to Proceed in forma pauperis and denying 3 Plaintiff's Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1). Signed by Judge William Q. Hayes on 5/10/2010; copy of this Order mailed to Matthew Cate; IFP package mailed 5/11/2010 (All non-registered users served via U.S. Mail Service)(tkl)
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-POR Miller v. Lamontagne et al Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JUSTIN THOMAS MILLER, CDCR #K-78694, Civil No. Plaintiff, 13 vs. 16 17 18 19 (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. § 1915(e)(1) [Doc. No. 3]; and JOHN LAMONTAGNE; RICHARD BUTCHER; JOSE E. OTERO; DAVID G. SMITH, AND 20 21 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350.00 BALANCE FROM PRISONER’S TRUST ACCOUNT [Doc. No. 2]; 14 15 10-0702 WQH (POR) Defendants. 22 (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) 23 Justin Thomas Miller (“Plaintiff”), a state prisoner currently incarcerated at Richard J. 24 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding in pro se, has 25 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 26 filing fee mandated by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In Forma 27 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2], as well as a Motion for 28 Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 3]. K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\10cv0702-grt IFP dny csl & serve.wpd 1 10cv0702 WQH (POR) Dockets.Justia.com 1 I. 2 MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 3] 3 Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. 4 The Constitution provides no right to appointment of counsel in a civil case, however, unless an 5 indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social 6 Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are 7 granted discretion to appoint counsel for indigent persons. This discretion may be exercised only 8 under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A 9 finding of exceptional circumstances requires an evaluation of both the ‘likelihood of success 10 on the merits and the ability of the plaintiff to articulate his claims pro se in light of the 11 complexity of the legal issues involved.’ Neither of these issues is dispositive and both must be 12 viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 13 1331 (9th Cir. 1986)). 14 The Court denies Plaintiff’s request without prejudice, as neither the interests of justice 15 nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 16 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 17 II. 18 MOTION TO PROCEED IFP [Doc. No. 2] 19 All parties instituting any civil action, suit or proceeding in a district court of the United 20 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 21 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 22 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 23 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to 24 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their 25 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 26 844, 847 (9th Cir. 2002). 27 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 28 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\10cv0702-grt IFP dny csl & serve.wpd 2 10cv0702 WQH (POR) 1 statement (or institutional equivalent) for the prisoner for the six-month period immediately 2 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 3 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 4 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 5 (b) the average monthly balance in the account for the past six months, whichever is greater, 6 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 7 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 8 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 9 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 10 § 1915(b)(2). 11 The Court finds that Plaintiff has no available funds from which to pay filing fees at this 12 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 13 from bringing a civil action or appealing a civil action or criminal judgment for the reason that 14 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 15 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 16 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 17 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion 18 to Proceed IFP [Doc. No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 19 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded 20 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 21 § 1915(b)(1). 22 III. 23 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 24 The PLRA also obligates the Court to review complaints filed by all persons proceeding 25 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 26 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 27 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 28 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\10cv0702-grt IFP dny csl & serve.wpd 3 10cv0702 WQH (POR) 1 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, 2 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 3 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 4 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) 5 (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 6 § 1915A). 7 “[W]hen determining whether a complaint states a claim, a court must accept as true all 8 allegations of material fact and must construe those facts in the light most favorable to the 9 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 10 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 11 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 12 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 13 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 14 pro se civil rights complaint, the court may not “supply essential elements of claims that were 15 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 16 Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 17 are not sufficient to withstand a motion to dismiss.” Id. 18 As currently pleaded, the Court finds Plaintiff’s allegations sufficient to survive the sua 19 sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).1 See Lopez, 203 F.3d at 20 1126-27. Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his behalf. 21 See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform 22 all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made 23 by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma 24 pauperis under 28 U.S.C. § 1915.”). 25 /// 26 /// 27 1 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\10cv0702-grt IFP dny csl & serve.wpd 4 10cv0702 WQH (POR) 1 IV. 2 CONCLUSION AND ORDER 3 Good cause appearing therefor, IT IS HEREBY ORDERED that: 4 1. 5 6 7 8 Plaintiff’s Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 3] is DENIED. 2. Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] is GRANTED. 3. The Secretary of California Department of Corrections and Rehabilitation, or his 9 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 10 owed in this case by collecting monthly payments from the account in an amount equal to twenty 11 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 12 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 13 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 14 ASSIGNED TO THIS ACTION. 15 4. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 16 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 17 Sacramento, California 95814. 18 IT IS FURTHER ORDERED that: 19 5. The Clerk shall issue a summons as to Plaintiff’s Complaint [Doc. No. 1] upon 20 Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 21 Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order and 22 a certified copy of his Complaint and the summons so that he may serve Defendants. Upon 23 receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and 24 accurately as possible, and to return them to the United States Marshal according to the 25 instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, 26 the U.S. Marshal shall serve a copy of the Complaint and summons upon Defendants as directed 27 by Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United States. 28 See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\10cv0702-grt IFP dny csl & serve.wpd 5 10cv0702 WQH (POR) 6. 1 Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within the 2 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 3 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to 4 reply to any action brought by a prisoner confined in any jail, prison, or other correctional 5 facility under section 1983,” once the Court has conducted its sua sponte screening pursuant to 6 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based 7 on 8 the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the 9 merits,” the defendant is required to respond). 10 7. Plaintiff shall serve upon the Defendants or, if appearance has been entered by 11 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 12 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 13 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy 14 of any document was served on Defendants, or counsel for Defendants, and the date of service. 15 Any paper received by the Court which has not been filed with the Clerk or which fails to 16 include a Certificate of Service will be disregarded. 17 DATED: May 10, 2010 18 WILLIAM Q. HAYES United States District Judge 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\10cv0702-grt IFP dny csl & serve.wpd 6 10cv0702 WQH (POR)
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