Cunningham v. UCSF Spine Center et al

Filing 10

ORDER for Filing of In Forma Pauperis Applicatio of Payment of Filing Fee 3 5 . Signed by Judge Edward M. Chen on 7/8/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 7/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LORENZO R. CUNNINGHAM,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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No. C-13-1978 EMC (pr)

UCSF SPINE CENTER; et al.,

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ORDER FOR FILING OF IN FORMA
PAUPERIS APPLICATION OF
PAYMENT OF FILING FEE

Defendants.
___________________________________/

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This pro se civil action was filed on April 30, 2013. On the same date he filed his complaint,

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Plaintiff requested a 30-day extension to pay the filing fee and the fee for service of process by the

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U.S. Marshal, in which he claimed not to know the amount of the filing fee. On April 30, 2013, the

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Court notified Plaintiff in writing that the action was deficient due to the failure to pay the filing fee

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or furnish a completed and signed court-approved in forma pauperis application. The notice stated

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that the “filing fee of $350.00 is now due.” Docket # 4. Plaintiff never paid the filing fee and never

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filed a completed in forma pauperis application. He did, however, send repeated requests for forms

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and fees to have the Marshal serve process.

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The very first thing that must be taken care of is the fee obligation. Plaintiff’s request for a

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30-day extension of time to pay the fee or submit an in forma pauperis application is GRANTED.

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(Docket # 3.) Plaintiff states that someone in his family would send the filing fee; to date, the Court

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has not received the filing fee. Plaintiff must pay the $350.00 filing fee or file a completed in forma

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pauperis application (including a certificate of funds and a copy of his inmate trust account

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statement for the last six months) no later than August 2, 2013. Failing to pay the fee or file a

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completed in forma pauperis application will result in the dismissal of this action.

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Plaintiff’s motion for summonses to serve on defendants and a fee schedule for service of

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process is DENIED as premature. (Docket # 5.) Until Plaintiff pays the filing fee or submits a

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completed in forma pauperis application, the Court will not know whether the complaint will be

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screened. Until the Court knows whether the complaint needs to be screened, the Court will not

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know whether any service of process will be required to be performed by Plaintiff or the Marshal.

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Plaintiff has moved for appointment of counsel to represent him in this action. A district

civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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For the Northern District of California

court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent

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United States District Court

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Cir. 1986). This requires an evaluation of both the likelihood of success on the merits and the ability

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of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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See id. Neither of these factors is dispositive and both must be viewed together before deciding on a

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request for counsel under § 1915(e)(1). Here, exceptional circumstances requiring the appointment

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of counsel are not evident at this time. The request for appointment of counsel is DENIED.

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(Docket # 3.)

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Plaintiff has moved for a preliminary injunction requiring Defendant UCSF Spine Center to

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remove the rods, plates and screws that were installed in his back during a September 2012 surgery

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after other hardware in his back broke. He alleges that he is in great pain as a result of the hardware.

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Plaintiff is not entitled to an injunction because he has completely failed to show any likelihood of

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success on the merits. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20

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(2008). His exhibits show that he has serious and longstanding back problems, but do not show any

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act or omission giving rise to liability by any of the defendants. The motion for a preliminary

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injunction is DENIED. (Docket # 3.)

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Plaintiff’s several filings indicate that he wants to proceed quickly toward a resolution of this

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action. The best way to make that happen is to comply with the Court’s orders and notices in a

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timely manner, which Plaintiff failed to do when he ignored the April 30, 2013 notice to pay the

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filing fee or file a completed in forma pauperis application. As noted above, Plaintiff has until

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August 2, 2013 to pay the $350.00 filing fee or file a completed in forma pauperis application.

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IT IS SO ORDERED.

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Dated: July 8, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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