Kimpel v. Marquez et al

Filing 6

ORDER: (1) granting 2 Motion for Leave to Proceed in forma pauperis, Imposing no initial partial filing fee and garnishing balance from prisoner's trust account; (2) denying 4 Motion for Legal Access to Law Library and denying 5 Motion to Appoint Counsel without Prejudice; and (3) Directing US Marshal to effect service of complaint: The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecti ng monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Order electronically transmitted to Matthew Cate, Secretary CDCR. Clerk to prepare IFP package. Signed by Judge Janis L. Sammartino on 9/6/11. (All non-registered users served via U.S. Mail Service)(lmt)(IFP package sent)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAY G. KIMPEL,
CDCR #V-01627,

Civil No.

Plaintiff,

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vs.

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(2) DENYING MOTION FOR LEGAL
ACCESS TO LAW LIBRARY AND
MOTION TO APPOINT COUNSEL
WITHOUT PREJUDICE
[ECF Nos. 4, 5]; and

I. MARQUEZ; D. MARTINEZ;
A. BUENROSTRO; RICO; RINK,

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS, IMPOSING
NO INITIAL PARTIAL FILING FEE
AND GARNISHING BALANCE
FROM PRISONER’S TRUST
ACCOUNT PURSUANT
TO 28 U.S.C. § 1915(a)
[ECF No. 2];

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11-1084 JLS (POR)

Defendants.

(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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Jay G. Kimpel, (“Plaintiff”), a state prisoner currently incarcerated at the Richard J.

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Donovan Correctional Facility located in San Diego, California, and proceeding in pro se, has

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filed this civil rights Complaint pursuant to 42 U.S.C. § 1983.
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11cv1084

(POR)

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

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has filed a certified copy of his inmate trust account statement which the Court liberally

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construes as a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

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[ECF No. 2]. In addition, Plaintiff has filed a “Motion for Legal Access to Law Library at RJD

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State Prison.” [ECF No. 4].

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I.

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MOTION TO PROCEED IFP

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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 he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP

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remains obligated to pay the entire fee in installments, regardless of whether his action is

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ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847

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(9th Cir. 2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a

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prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account

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statement (or institutional equivalent) for the prisoner for the six-month period immediately

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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,

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1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial

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payment of 20% of (a) the average monthly deposits in the account for the past six months, or

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(b) the average monthly balance in the account for the past six months, whichever is greater,

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unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The

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institution having custody of the prisoner must collect subsequent payments, assessed at 20%

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of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and

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forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C.

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§ 1915(b)(2).

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11cv1084

(POR)

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The Court finds that Plaintiff has submitted a certified copy of his trust account statement

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pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119.

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Plaintiff’s trust account statement shows he has insufficient funds with which to pay any initial

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partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

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prohibited from bringing a civil action or appealing a civil action or criminal judgment for the

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reason that the prisoner has no assets and no means by which to pay [an] initial partial filing

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fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

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preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack

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of funds available.”).

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

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

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balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court

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

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II.

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MOTION FOR ORDER FOR LEGAL ACCESS TO LAW LIBRARY

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In this Motion, which is far from clear, Plaintiff is requesting that this Court issue an

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Order for “full use of legal information in the prison’s law library.” (Pl.’s Mot. at 1.) It is

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simply not clear to the Court what Plaintiff is referring to when he requests “full use of legal

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information.” It is also not clear whether Plaintiff has some access to the law library or whether

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he is requesting unlimited access to the prison’s law library. Regardless, there are no current

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pending deadlines in this case and thus, law library access is not required at this stage of the

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proceedings. Accordingly, Plaintiff’s Motion for Legal Access to Law Library is DENIED

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without prejudice.

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III.

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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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The PLRA also obligates the Court to review complaints filed by all persons proceeding

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IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused

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of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
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(POR)

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conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

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provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-

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27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)).

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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); see also Barren v. Harrington,

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152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the language of Federal

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Rule of Civil Procedure 12(b)(6)”). In addition, courts “have an obligation where the petitioner

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is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt.” Hebbe v. Pliler, __ F.3d __, 2010 WL 4673711 at *3 & n.7

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(9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may

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not, however, “supply essential elements of claims that were not initially pled.” Ivey v. Board

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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and

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conclusory allegations of official participation in civil rights violations are not sufficient to

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withstand a motion to dismiss.” Id.

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As currently pleaded, the Court finds Plaintiff’s allegations sufficient to survive the sua

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sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at

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1126-27. Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his behalf.

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See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by

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a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma

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pauperis under 28 U.S.C. § 1915.”). Plaintiff is cautioned that “the sua sponte screening and

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dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion

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that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D.

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Cal. 2007).
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(POR)

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IV.

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MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 5]

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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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Here, while the Court has found that Plaintiff’s Complaint has survived the sua sponte

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screening process such that it requires a response from Defendants, the record is not developed

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such that the Court can make a determination on the likelihood of success on the merits at this

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stage of the proceedings. In addition, at this stage, Plaintiff appears to be able to articulate his

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claims as set forth above in the Court’s determination that he is entitled to U.S. Marshal Service

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of his Complaint. Accordingly, the Court denies Plaintiff’s request without prejudice, as neither

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the interests of justice nor exceptional circumstances warrant appointment of counsel at this

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

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V.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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without prejudice [ECF No. 4].
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Plaintiff’s Motion for Court Order for Legal Access to Law Library is DENIED
Plaintiff’s Motion to Appoint Counsel [ECF No. 5] is DENIED without prejudice.

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11cv1084

(POR)

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3.

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

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

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designee, is ordered to collect from Plaintiff’s prison trust account the $350 balance of the filing

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fee owed in this case by collecting monthly payments from the trust account in an amount equal

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to twenty percent (20%) of the preceding month’s income credited to the account and forward

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payments to the Clerk of the Court each time the amount in the account exceeds $10 in

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accordance with 28 U.S.C. § 1915(b)(2).

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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

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5.

ALL PAYMENTS SHALL BE CLEARLY

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

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Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883,

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Sacramento, California 94283-0001.

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IT IS FURTHER ORDERED that:

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

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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 so that he may serve Defendants. Upon

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

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

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

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

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by Plaintiff on the USM Form 285s. 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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Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within the

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time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42

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U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to

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reply to any action brought by a prisoner confined in any jail, prison, or other correctional

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facility under section 1983,” once the Court has conducted its sua sponte screening pursuant to
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(POR)

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28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based

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on

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the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the

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merits,” the defendant is required to respond).

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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 Defendants, or counsel for Defendants, and the date of service.

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

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include a Certificate of Service will be disregarded.

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IT IS SO ORDERED.

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DATED: September 6, 2011
Honorable Janis L. Sammartino
United States District Judge

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(POR)