Alvarez v. Ko et al

Filing 8

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall 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 th is case by collecting 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 Secretary of CDCR) ; Denying 3 Motion to Appoint Counsel ; Denying 4 Motion for Preliminary Injunction ; Directing U.S. Marshal to Effect Service. Signed by Judge Marilyn L. Huff on 6/28/16. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VICENTE ARRAIGA ALVAREZ,
CDCR #V-99688,

ORDER:

Plaintiff,

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Case No.: 16-cv-1302-H-NLS

v.

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

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DR. S. KO, DR. CONNALL McCABE,
DR. A. SANGHA, J. LEWIS,

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

Defendants.

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[Doc. No. 3]

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(3) DENYING MOTION FOR
PRELIMINARY INJUNCTION

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[Doc. No. 4]

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(4) DIRECTING U.S. MARSHAL
TO EFFECT SERVICE

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On May 31, 2016, Plaintiff Vicente Arraiga Alvarez, currently incarcerated at

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Corcoran State Prison and proceeding pro se, filed a civil rights complaint under 42 U.S.C.

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§ 1983. (Doc. No. 1.)
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Plaintiff claims that Richard J. Donovan Correctional Facility and Corcoran State

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Prison officials violated and continue to violate his Eighth Amendment rights by denying

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him adequate medical care. (Id.) Plaintiff did not prepay the civil filing fee required by

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28 U.S.C. § 1914(a) when he filed his complaint. Instead, he filed a motion to proceed in

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forma pauperis (“IFP”) under 28 U.S.C. § 1915(a), along with motions to appoint counsel

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and for a preliminary injunction. (Doc. Nos. 2–4.)

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A.

Motion to Proceed IFP

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Plaintiff moves for leave to proceed IFP. (Doc. No. 2.) All parties instituting any

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civil action, suit or proceeding in a district court of the United States, except an application

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for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a).1 The

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action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted

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leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d

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1047, 1051 (9th Cir. 2007). However, a prisoner who is granted leave to proceed IFP

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remains obligated to pay the entire fee in increments and regardless of whether his action

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is ultimately dismissed. See 28 U.S.C. §§ 1915(b)(1), (2); Bruce v. Samuels, 136 S. Ct.

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627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . .

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the 6-month period immediately preceding the filing of the complaint.”

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§ 1915(a)(2); see Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). The Court will

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assess an initial payment of 20% of the average monthly deposits in the account for the

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past six months, or of the average monthly balance in the account for the past six months,

28 U.S.C.

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In addition to the $350 statutory fee, civil litigants must pay an administrative fee of $50.
See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14 (eff. Dec. 1, 2014)). The additional $50 administrative fee does not apply
to persons granted leave to proceed IFP. See id.
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whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (b)(4).

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The institution with custody of the prisoner will collect payments of 20% of the preceding

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month’s income in any month where his account exceeds $10, and forward those payments

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to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct.

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at 629.

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Plaintiff submitted a certified prison certificate and a certified copy of his inmate

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trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. (Doc.

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No. 7.) This certificate shows that Plaintiff had no monthly deposits and carried no balance

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in his trust account during the 6-month period preceding the filing of this action, and had

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an available balance of zero at the time of filing. (Id.) The Court assesses no initial partial

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filing fee because Plaintiff is unable to pay any initial fee at this time. See 28 U.S.C.

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§ 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or

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appealing a civil action or criminal judgment for the reason that the prisoner has no assets

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and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630;

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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

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the lack of funds available to him when payment is ordered.”).

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The Court grants Plaintiff’s motion to proceed IFP and declines to exact any initial

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filing fee because his prison certificate shows he has no means to pay it. See Bruce, 136

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S. Ct. at 629. The Court directs the Secretary of the California Department of Corrections

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and Rehabilitation (“CDCR”), or his designee, to collect the entire $350 balance of the

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filing fees and forward the fees to the Clerk of the Court. See id.

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B.

Motion for Appointment of Counsel

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Plaintiff asks the Court to appoint counsel. (Doc. No. 3.) “There is no constitutional

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right to appointed counsel in a § 1983 action.” Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997). While 28 U.S.C. § 1915(e)(1) grants the district court limited discretion

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to request that an attorney represent an indigent civil litigant, this discretion may be

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exercised only under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390
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F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances requires “an

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evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the

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plaintiff’s ability to articulate his claims in light of the complexity of the legal issues

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involved.” Id. at 1103 (internal citations omitted).

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The Court denies Plaintiff’s request for appointed counsel without prejudice.

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Nothing in the record at this stage of the proceedings suggests he is incapable of articulating

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the factual basis for his claims, and any evaluation of his likelihood of success on the merits

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is premature.

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C.

Motion for Preliminary Injunction

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Plaintiff also filed a motion for preliminary injunction pursuant to Federal Rule of

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Civil Procedure 65(a). (Doc. No. 4.) Rule 65(a) provides that “the court may issue a

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preliminary injunction only on notice to the adverse party.” As a preliminary matter,

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Plaintiff’s motion for an injunction does not comply with the Rule 65(a) procedural notice

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requirement. Plaintiff has not demonstrated that his complaint or his motion have been

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served on the named Defendants. Thus, the Court denies without prejudice Plaintiff’s

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motion for preliminary injunction.

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D.

Screening Under 28 U.S.C. §§ 1915(e)(2) and 1915A

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Regardless of a plaintiff’s IFP status or the payment of any filing fees, the Prison

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Litigation Reform Act (“PLRA”) requires the Court to review “as soon as practicable after

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docketing, a complaint in a civil action in which a prisoner seeks redress from a

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governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A.

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The Court must dismiss any complaint, or any portion of a complaint, that is frivolous,

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malicious, fails to state a claim, or seeks damages from defendants who are immune. See

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id; Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010); Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

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specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. The “mere possibility of misconduct” falls short of meeting this

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plausibility standard. Id.

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen

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determining whether a complaint states a claim, a court must accept as true all allegations

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of material fact and must construe those facts in the light most favorable to the plaintiff.”).

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The Court “ha[s] an obligation where the petitioner is pro se, particularly in civil

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rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of

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any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, it may not

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“supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents

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of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff alleges deliberate indifference to his serious medical needs. (Doc. No. 1.)

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Plaintiff’s complaint contains claims sufficient to survive the “low threshold” for

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proceeding past the screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A. See

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Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). Accordingly, the Court directs

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the U.S. Marshal to effect service upon the Defendants on Plaintiff’s behalf. See 28 U.S.C.

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§ 1915(d); Fed. R. Civ. P. 4(c)(3).

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CONCLUSION

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The Court grants Plaintiff’s motion to proceed IFP under 28 U.S.C. § 1915(a). (Doc.

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No. 2.) However, the Court denies without prejudice Plaintiff’s motion for appointment

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of counsel and his motion for a preliminary injunction. (Doc. Nos. 3, 4.) The Court directs

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the Secretary of the CDCR, or his designee, to collect from Plaintiff’s prison trust account

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the $350 filing fee owed in this case by garnishing monthly payments from Plaintiff’s

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account in an amount equal to twenty percent (20%) of the preceding month’s income, and
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to forward those payments to the Clerk of the Court each time the amount in the account

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exceeds $10. All payments must be clearly identified by the name and number assigned to

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this action. The Court directs the Clerk of the Court to serve a copy of this order on Scott

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Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

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The Court also directs the Clerk of Court to issue a summons as to Plaintiff’s

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

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Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this order,

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a certified copy of his complaint, and the summons so that he may serve Defendants. On

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receipt of this IFP package, Plaintiff must fill out the Form 285s as completely and

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accurately as possible and return the forms to the U.S. Marshal according to the instructions

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the Clerk provides in the letter accompanying the IFP package.

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The Court directs the United States Marshals Service to serve a copy of the

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complaint and summons on Defendants as directed by Plaintiff on the USM Form 285s

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provided to him. All costs of that service will be advanced by the United States. See 28

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U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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After the U.S. Marshal has effected service, Plaintiff must serve on Defendants or,

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if appearance has been entered by counsel, on Defendants’ counsel a copy of every further

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pleading, motion, or other document submitted for the Court’s consideration. See Fed.

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Rule Civ. P. 5(b). Plaintiff must include with every original document he seeks to file with

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the Clerk of the Court a certificate stating how a true and correct copy of that document

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was served on Defendants or their counsel, and the date of that service. See Civ. L.R. 5.2.

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The Court will disregard any document it receives that has not been properly filed with the

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Clerk or that fails to include a certificate of service.

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IT IS SO ORDERED.
DATED: June 28, 2016
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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