Morris v. Barra et al
Filing
12
ORDER granting 2 Motion to Proceed in forma pauperis; denying 3 9 Motions to Appoint Counsel Pursuant to 28 U.S.C. §1915(e)(1) ; and Directing U.S. Marshall to Effect Service of Summons and First Amended Complaint Upon Defendants Pursuant to Fed.R.Civ.P 4 (c)(3) and 28 U.S.C. §1915(d). US Marshal shall effect service of complaint. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Anthony J. Battaglia on 04/13/11. (All non-registered users served via U.S. Mail Service)(cge)
1
2
3
4
5
6
7
8
9
10
11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CONDALEE MORRIS,
CDCR #V-96203,
Civil No.
Plaintiff,
12
vs.
(2) DENYING MOTIONS TO
APPOINT COUNSEL PURSUANT
TO 28 U.S.C. § 1915(e)(1)
[ECF Nos. 3, 9];
15
16
17
M. BARRA; L. MILLS; D. WHITE;
G.J. JANDA; MACE; JANE DOE,
AND
18
19
ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2];
13
14
10-2642 AJB (BGS)
Defendants.
20
21
(3) DIRECTING U.S. MARSHAL
TO EFFECT SERVICE OF
SUMMONS AND FIRST AMENDED
COMPLAINT UPON DEFENDANTS
PURSUANT TO FED.R.CIV.P. 4(c)(3)
AND 28 U.S.C. § 1915(d)
22
23
Plaintiff, Condalee Morris, a prisoner currently incarcerated at the California Correctional
24
Institution located in Tehachapi, California, and proceeding pro se, has submitted a civil rights
25
Complaint pursuant to 28 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated
26
by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”)
27
pursuant to 28 U.S.C. § 1915(a) [ECF No. 2], as well as two Motions for Appointment of
28
Counsel pursuant to 28 U.S.C. § 1915(e)(1) [ECF Nos. 3, 9].
-1-
K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv2462-grt IFP dny csl & serve.wpd
10cv2642 AJB (BGS)
1
2
Before the Court could conduct the required sua sponte screening pursuant to 28 U.S.C.
§ 1915(e)(2) & § 1915A, Plaintiff filed a First Amended Complaint (“FAC”) [ECF No. 7].
3
I.
4
Motion to Proceed IFP [ECF No. 2]
5
All parties instituting any civil action, suit or proceeding in a district court of the United
6
States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
7
U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee
8
only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
9
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to
10
proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their
11
action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d
12
844, 847 (9th Cir. 2002).
13
Section 1915, as amended by the Prison Litigation Reform Act (“PLRA”), further
14
requires that each prisoner seeking leave to proceed IFP submit a “certified copy of [his] trust
15
fund account statement (or institutional equivalent) ... for the six-month period immediately
16
preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). Using these certified trust
17
account statements, the Court must assess an initial payment of 20% of (a) the average monthly
18
deposit, or (b) the average monthly balance in the account for the past six months, whichever
19
is greater, and collect that amount as the prisoner’s initial partial filing fee, unless he has no
20
current assets with which to pay. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4); Taylor,
21
281 F.3d at 850. Thereafter, the institution having custody of the prisoner must collect
22
subsequent payments, assessed at 20% of the preceding month’s income, in any month in which
23
his account exceeds $10, and forward those payments to the Court until the entire filing fee is
24
paid. See 28 U.S.C. § 1915(b)(2); Taylor, 281 F.3d at 847.
25
The Court finds that Plaintiff has submitted an affidavit that complies with 28 U.S.C.
26
§ 1915(a)(1) [ECF No. 2] as well as a certified copy of his prison trust account statement
27
pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2.
28
indicates that he has insufficient funds from which to pay an initial partial filing fee.
-2-
K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv2462-grt IFP dny csl & serve.wpd
Plaintiff’s trust account currently
10cv2642 AJB (BGS)
1
Accordingly, the Court hereby GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2],
2
and assesses no initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(1) (court shall
3
assess initial partial filing fee only “when funds exist”); 28 U.S.C. § 1915(b)(4) (“In no event
4
shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has
5
no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850
6
(finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s
7
IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when
8
payment is ordered.”). However, Plaintiff is required to pay the full $350 filing fee mandated
9
by 28 U.S.C. §§ 1914(a) and 1915(b)(1), by subjecting any future funds credited to his prison
10
trust account to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2).
11
II.
12
Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A
13
The PLRA also obligates the Court to review complaints filed by all persons proceeding
14
IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused
15
of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
16
conditions of parole, probation, pretrial release, or diversionary program,” “as soon as
17
practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these
18
provisions, the Court must sua sponte dismiss any prisoner and all other IFP complaints, or any
19
portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages
20
from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith,
21
203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d
22
443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th
23
Cir. 1998) (discussing § 1915A). “[W]hen determining whether a complaint states a claim, a
24
court must accept as true all allegations of material fact and must construe those facts in the light
25
most favorable to the plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that
26
§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
27
Here, the Court finds that Plaintiff’s claims in his First Amended Complaint survive the
28
sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and that Plaintiff is
-3-
K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv2462-grt IFP dny csl & serve.wpd
10cv2642 AJB (BGS)
1
therefore automatically entitled to U.S. Marshal service on his behalf as to those individuals.
2
See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) (“The officers of the court shall issue and
3
serve all process, and perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (providing that
4
“service be effected by a United States marshal, deputy Untied States marshal, or other officer
5
specially appointed by the court ... when the plaintiff is authorized to proceed in forma pauperis
6
pursuant to 28 U.S.C. § 1915.”).
7
III.
8
Motion for Appointment of Counsel [ECF Nos. 3, 9]
9
Plaintiff also requests the appointment of counsel to assist him in prosecuting this civil
10
action. The Constitution provides no right to appointment of counsel in a civil case, however,
11
unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v.
12
Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1),
13
district courts are granted discretion to appoint counsel for indigent persons. This discretion may
14
be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017
15
(9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the
16
‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se
17
in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and
18
both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon,
19
789 F.2d 1328, 1331 (9th Cir. 1986)).
20
The Court denies Plaintiff’s request without prejudice, as neither the interests of justice
21
nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,
22
827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
23
IV.
24
Conclusion and Order
25
Good cause appearing, IT IS HEREBY ORDERED that:
26
1.
27
Plaintiff’s Motions for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1)
[ECF Nos. 3, 9] are DENIED.
28
-4-
K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv2462-grt IFP dny csl & serve.wpd
10cv2642 AJB (BGS)
1
2
3
2.
Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is
GRANTED.
3.
The Secretary of California Department of Corrections and Rehabilitation, or his
4
designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee
5
owed in this case by collecting monthly payments from the account in an amount equal to twenty
6
percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court
7
each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).
8
ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
9
ASSIGNED TO THIS ACTION.
10
4.
The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,
11
Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,
12
Sacramento, California 95814.
13
IT IS FURTHER ORDERED that:
14
5.
The Clerk shall issue the summons upon Defendants, provide Plaintiff with a
15
certified copy of both this Order and his First Amended Complaint, and forward them to Plaintiff
16
along with a blank U.S. Marshal Form 285 for each of these Defendants. Plaintiff shall complete
17
the Form 285s and forward them to the United States Marshal. The U.S. Marshal serve a copy
18
of the First Amended Complaint and summons upon each individual Defendant as directed by
19
Plaintiff on each U.S. Marshal Form 285. All costs of service shall be advanced by the United
20
States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3).
21
6.
Once served, these Defendants are thereafter ORDERED to reply to the First
22
Amended Complaint within the time provided by the applicable provisions of Federal Rule of
23
Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be
24
permitted to “waive the right to reply to any action brought by a prisoner confined in any jail,
25
prison, or other correctional facility under section 1983,” once the Court has conducted its sua
26
sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a
27
preliminary determination based on the face on the pleading alone that Plaintiff has a
28
“reasonable opportunity to prevail on the merits,” Defendants are required to respond).
-5-
K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv2462-grt IFP dny csl & serve.wpd
10cv2642 AJB (BGS)
1
7.
Plaintiff shall serve upon Defendants or, if appearance has been entered by
2
counsel, upon Defendants’ counsel, a copy of every further pleading or other document
3
submitted for consideration of the Court. Plaintiff shall include with the original paper to be
4
filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy
5
of any document was served on Defendants, or counsel for Defendants, and the date of service.
6
Any paper received by the Court which has not been filed with the Clerk or which fails to
7
include a Certificate of Service will be disregarded.
8
9
IT IS SO ORDERED.
DATED: April 13, 2011
10
11
Hon. Anthony J. Battaglia
U.S. District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-
K:\COMMON\BATTAGLI\DJ CASES\2 Orders to be filed\10cv2462-grt IFP dny csl & serve.wpd
10cv2642 AJB (BGS)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?