Lambert v. Martinson et al

Filing 4

ORDER denying 2 Motion for Leave to Proceed in forma pauperis and denying 3 Motion to Appoint Counsel and Dismissing Civil Action without Prejudice for Failing to Prepay Full Civil Filing Fee: Plaintiff is granted an additional 45 days from the d ate this Order is Filed to either: (1) pay the entire $350 filing fee, or (2) file a new Motion to Proceed IFP, which includes a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint. The Cle rk of the Court shall provide Plaintiff with a Court-approved IFP form. If Plaintiff neither pays the $350 filing fee in full nor sufficiently completes and files the attached Motion to Proceed IFP, together with a certified copy of his prison trust account statement within 45 days, this action shall remained closed without further Order of the Court. Signed by Judge Janis L. Sammartino on 10/29/10. (All non-registered users served via U.S. Mail Service; IFP form sent)(lmt)

-RBB Lambert v. Martinson et al

Doc. 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Plaintiff, an inmate currently incarcerated at Kern Valley State Prison in Delano, Defendants. J. MARTINSON, et al., vs. JAWANTA J. LAMBERT, CDCR #V-42105, Plaintiff,
Civil No.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

10-1978 JLS (RBB)

ORDER DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS AND FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. § 1915(a) AND 28 U.S.C. § 1915(e)(1) AND DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PREPAY FULL CIVIL FILING FEE [Doc. Nos. 2, 3]

23 California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. 24 Plaintiff alleges prison officials at Centinela State Prison violated his Eighth and 25 Fourteenth Amendment rights by using excessive force against him on April 21, 2009, and by 26 failing to properly address his administrative grievances regarding the incident. See Compl. at 27 3-6. 28
K:\COMMON\Chmb_Sammartino\Colin Davis 2010-2011\Prisoner\PSLC\10cv1978_Order Denying Motions to Proceed IFP and for Appointment of Counsel.wpd

-1-

10cv1978

Dockets.Justia.com

1

Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead,

2 he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) 3 [Doc. No. 2], as well as a Motion for Appointment of Counsel [Doc. No. 3]. 4 5 6 I. MOTION TO PROCEED IFP All parties instituting any civil action, suit or proceeding in a district court of the United

7 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 8 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is 9 granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See 10 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 11 1177 (9th Cir. 1999). "Under the PLRA [Prison Litigation Reform Act], all prisoners who file 12 IFP civil actions must pay the full amount of the filing fee," regardless of whether the action is 13 ultimately dismissed for any reason. See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) 14 (citing 28 U.S.C. § 1915(b)(1) & (2)). 15 In order to comply with the PLRA, prisoners seeking leave to proceed IFP must also 16 submit a "certified copy of the trust fund account statement (or institutional equivalent) for the 17 prisoner for the 6-month period immediately preceding the filing of the complaint...." 28 U.S.C. 18 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment 19 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 20 average monthly balance in the account for the past six months, whichever is greater, unless the 21 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, 22 the institution having custody of the prisoner must collect subsequent payments, assessed at 20% 23 of the preceding month's income, in any month in which the prisoner's account exceeds $10, and 24 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 25 § 1915(b)(2). 26 While Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. 27 § 1915(a), he has not attached a certified copy of his prison trust account statement for the 628 month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2);
K:\COMMON\Chmb_Sammartino\Colin Davis 2010-2011\Prisoner\PSLC\10cv1978_Order Denying Motions to Proceed IFP and for Appointment of Counsel.wpd

-2-

10cv1978

1 S.D. CAL. CIVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a 2 civil action ...without prepayment of fees ... shall submit a certified copy of the trust fund 3 account statement (or institutional equivalent) ... for the 6-month period immediately preceding 4 the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). 5 Without Plaintiff's trust account statement, the Court is simply unable to assess the

6 appropriate amount of the filing fee which is statutorily required to initiate the prosecution of 7 this action. See 28 U.S.C. § 1915(b)(1). 8 9 10 11 Therefore, Plaintiff's Motion to Proceed IFP must be DENIED. II. MOTION FOR APPOINTMENT OF COUNSEL Plaintiff has also filed a motion for appointment of counsel in this matter. Generally,

12 there is no right to counsel in a civil action. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) 13 (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)). Under "exceptional 14 circumstances," however, a court may exercise its discretion under another provision of the IFP 15 statute and "request an attorney to represent any person unable to afford counsel." 28 U.S.C. 16 § 1915(e)(2) (emphasis added); Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 17 2004) (under "exceptional circumstances" court may appoint counsel for indigent civil litigants). 18 Here, Plaintiff has been denied IFP status because his failure to provide a certified copy

19 of his prison trust account statement prevents the Court from determining whether he is 20 sufficiently impoverished to justify commencement of a civil action without full payment of the 21 $350 filing fee. Likewise, Plaintiff's motion for appointment of counsel does not demonstrate 22 that he is "unable to afford counsel" pursuant to 28 U.S.C. § 1915(e)(1). Nor does it show the 23 "exceptional circumstances" which must exist in order to justify such an appointment. See 24 Palmer, 560 F.3d at 970 (citing Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Wilborn 25 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 26 Accordingly, Plaintiff's Motion for Appointment of Counsel is DENIED without

27 prejudice. 28 / / /
K:\COMMON\Chmb_Sammartino\Colin Davis 2010-2011\Prisoner\PSLC\10cv1978_Order Denying Motions to Proceed IFP and for Appointment of Counsel.wpd

-3-

10cv1978

1 2 3 4 (1) (2) (3)

III. CONCLUSION AND ORDER For the reasons set forth above, IT IS ORDERED that: Plaintiff's Motion to Proceed IFP [Doc. No. 2] and Motion for Appointment of This action is DISMISSED without prejudice for failure to prepay the $350 filing Plaintiff is GRANTED an additional forty five (45) days from the date this Order

5 Counsel [Doc. No. 3] are DENIED. 6 7 fee mandated by 28 U.S.C. § 1914(a). 8

9 is Filed to either: (1) pay the entire $350 filing fee, or (2) file a new Motion to Proceed IFP, 10 which includes a certified copy of his trust account statement for the 6-month period preceding 11 the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). 12 IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with a

13 Court-approved form "Motion and Declaration in Support of Motion to Proceed IFP" in this 14 matter. If Plaintiff neither pays the $350 filing fee in full nor sufficiently completes and files 15 the attached Motion to Proceed IFP, together with a certified copy of his prison trust account 16 statement within 45 days, this action shall remained closed without further Order of the Court.1 17 18 19 20 21 22 23 24 fee required by 28 U.S.C. § 1914(a), or sufficiently moving to proceed IFP, his Complaint will be screened by the Court and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. 25 § 1915(e)(2)(b) regardless of payment or fee status. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th 26 sponte dismiss an in forma pauperis complaint that fails to state a claim); see also Rhodes v. Robinson, __ F.3d __, 2010 WL 3489777 at *1 (9th Cir. 2010) (discussing sua sponte screening required by 28 27 U.S.C. § 1915A(b) of all prisoner complaints). Moreover, such a dismissal may be counted as a "strike" 28 Andrews, 493 F.3d at 1052 (under the PLRA, "[p]risoners who have repeatedly brought unsuccessful
suits may entirely be barred from IFP status under the three strikes rule[.]"). -4K:\COMMON\Chmb_Sammartino\Colin Davis 2010-2011\Prisoner\PSLC\10cv1978_Order Denying Motions to Proceed IFP and for Appointment of Counsel.wpd

DATED: October 29, 2010 Honorable Janis L. Sammartino United States District Judge

1

Plaintiff is cautioned that if he chooses to proceed further by either paying the full civil filing

Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua

against Plaintiff if he requests IFP status in any future civil action filed while he is incarcerated. See

10cv1978