Porter v. Neotti et al

Filing 4

ORDER Granting 2 Motion to Proceed in forma pauperis; Denying 3 Motion for Appoint of Counsel ; and Directing US Marshal to effect service of complaint pursuant to FED.R.CIV.P. 4(c)(3) & 28 U.S.C.§ 1915(d). (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Barry Ted Moskowitz on 8/2/11. (All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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RYAN E. PORTER,
CDCR #V-40311,

Civil No.

Plaintiff,

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ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS,
[ECF No. 2];

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vs.

(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 3]

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GEORGE NEOTTI, et al.;

AND
(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)

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Defendants.

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Ryan E. Porter (“Plaintiff”), a state prisoner currently incarcerated at the Richard J.

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Donovan Correctional Facility, and proceeding pro se, has submitted a civil action pursuant to

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42 U.S.C. § 1983. Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

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to 28 U.S.C. § 1915(a) [ECF No. 2], along with a Motion for Appointment of Counsel [ECF No.

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3].

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I.

MOTION TO PROCEED IFP [ECF NO. 2]

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All parties instituting any civil action, suit or proceeding in a district court of the United

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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28

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U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee

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only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to

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proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their

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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2).

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The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C.

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§ 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to

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28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust account statement shows that

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he has no available funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2] and assesses no

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initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the

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filing fee mandated shall be collected and forwarded to the Clerk of the Court pursuant to the

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installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 3]

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Plaintiff also requests the appointment of counsel to assist him in prosecuting this civil

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action. The Constitution provides no right to appointment of counsel in a civil case, however,

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unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v.

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Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1),

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district courts are granted discretion to appoint counsel for indigent persons. This discretion may

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be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the

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‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se

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in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and

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both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice

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nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,

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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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III.

INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

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Notwithstanding IFP status or the payment of any partial filing fee, the Court must subject

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each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order

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the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a claim upon

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which relief may be granted, or seeking monetary relief from a defendant immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte

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dismiss an in forma pauperis complaint that fails to state a claim).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In addition, the Court has a duty

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to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839

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F.2d 621, 623 (9th Cir. 1988), which is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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Here, the Court finds Plaintiff’s Complaint survives the sua sponte screening required

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by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27. Accordingly, the

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Court finds Plaintiff is entitled to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d);

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FED.R.CIV.P. 4(c)(3).

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IV.

CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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GRANTED.

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Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is

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2.

The Secretary of California Department of Corrections and Rehabilitation, or his

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designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee

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owed in this case by collecting monthly payments from the account in an amount equal to twenty

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percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court

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each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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3.

The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,

Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,
Sacramento, California 95814.

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IT IS FURTHER ORDERED that:

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4.

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Plaintiff’s Motion for Appointment of Counsel [ECF No. 3] is DENIED without

prejudice.
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The Clerk shall issue a summons as to Plaintiff’s Complaint [ECF No. 1] upon the

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Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for

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each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order

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and a certified copy of his Complaint and the summons for purposes of serving the Defendants.

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Upon receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285 as completely

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and accurately as possible, and to return it to the United States Marshal according to the

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instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter, the

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U.S. Marshal shall serve a copy of the Complaint and summons upon the Defendants as directed

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by Plaintiff on the USM Form 285. All costs of service shall be advanced by the United States.

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See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3).

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Plaintiff shall serve upon the Defendants or, if appearance has been entered by

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counsel, upon Defendants’ counsel, a copy of every further pleading or other document

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submitted for consideration of the Court. Plaintiff shall include with the original paper to be

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filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy

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of any document was served on the Defendants, or counsel for Defendants, and the date of

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service. Any paper received by the Court which has not been filed with the Clerk or which fails

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to include a Certificate of Service will be disregarded.

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IT IS SO ORDERED.

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DATED: August 2, 2011

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Honorable Barry Ted Moskowitz
United States District Judge

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