Murschel v. Paramo et al

Filing 7

ORDER: (1) Granting Motion for Leave to Proceed in forma pauperis (ECF No. 2 ); (2) Directs the Secretary of the CDCR, or his designee, to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing mo nthly payments from his account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. &# 167; 1915(b)(2). All Payments Shall be Clearly Identified by the Name and Number Assigned to this Action; (3) Directs the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 942 83-0001; (4) Orders Defendants to file a response to Plaintiff's Motion for Restraining Order and Preliminary Injunction (ECF No. 3 ) by 6/23/2017; (5) Denies Plaintiff's Motion for Appointment of Counsel (ECF No. 4 ). A separate Order sc reening Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A will issue at a later time. Signed by Judge Barry Ted Moskowitz on 6/14/2017. (Order electronically transmitted to Secretary of CDCR)(All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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LANCE MURSCHEL,
CDCR #P-04895,

ORDER:

Plaintiff,

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Case No.: 3:17-cv-1142-BTM-AGS

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;

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2) DENYING MOTION FOR
APPOINMENT OF COUNSEL; and

DANIEL PARAMO, et al.,
Defendants.

3) ORDERING RESPONSE TO
MOTION FOR TEMPORARY
RESTRAINING ORDER

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Lance Murschel (“Plaintiff”), a prisoner incarcerated the Richard J. Donovan

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Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se,

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has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No.

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1.) Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2), a “Motion for a Temporary Restraining Order and

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Preliminary Injunction” (ECF No. 3) and a “Motion to Appoint Counsel” (ECF No. 4).
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As an initial matter, the Court notes that Plaintiff failed to comply with the Court’s

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General Order 653 which requires that initial filings by incarcerated plaintiffs at RJD

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brought pursuant to 42 U.S.C. § 1983 must be electronically filed. See S.D. Cal. GO 653.

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While the Court accepted Plaintiff’s filing, see ECF No. 6, the Court cautions Plaintiff

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that if he initiates other civil actions in the future while housed at RJD and does not

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comply with GO 653, those actions may be rejected by the Court.

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I.

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Plaintiff’s IFP Motion
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.

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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 . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly

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In addition to the $350 statutory fee, civil litigants must pay an additional 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. Id.
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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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In support of his IFP motion, Plaintiff has submitted a certified copy of his prison

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trust account statement at RJD pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR

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3.2.; Andrews, 398 F.3d at 1119. This statement shows that Plaintiff has an available

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balance of zero in his inmate trust account at the time of filing. Therefore, the Court

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assesses no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1) because it appears

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Plaintiff is unable to pay any initial fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n

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no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

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action or criminal judgment for the reason that the prisoner has no assets and no means

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by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d

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at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal

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

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available to him when payment is ordered.”).
Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

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declines to “exact” any initial filing fee because his prison certificate shows he “has no

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means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the CDCR, or his

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designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C.

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§ 1914 and to forward them to the Clerk of the Court pursuant to the installment payment

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provisions set forth in 28 U.S.C. § 1915(b)(1). See id.

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II.

Motion to Appoint Counsel

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Plaintiff seeks appointment of counsel to assist him in this matter. (ECF No. 4.)

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However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. of

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Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district
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courts have some limited discretion to “request” that an attorney represent an indigent

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civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004),

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this discretion is rarely exercised and only under “exceptional circumstances.” Id.; see

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also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional

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circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103, quoting Wilborn

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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
Applying these factors to Plaintiff’s case, the Court DENIES his Motion to

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Appoint Counsel because a liberal construction of his original pleadings shows he is

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capable of articulating the factual basis for his claims. All documents filed by pro se

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litigants are construed liberally, and “a pro se complaint, however inartfully pleaded,

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must be held to less stringent standards than formal pleadings drafted by lawyers.”

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Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that

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“[p]leadings . . . be construed so as to do justice.”

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The pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be

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a trained in law, he is capable of legibly articulating the facts and circumstances relevant

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to his claims, which are typical, straightforward, and not legally “complex.” Agyeman,

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390 F.3d at 1103. Therefore, neither the interests of justice nor any exceptional

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circumstances warrant the appointment of counsel in this case at this time. LaMere v.

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

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II.

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Motion for Restraining Order
Plaintiff has filed a “Motion for a Temporary Restraining Order and Preliminary

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Injunction” pursuant to FED. R. CIV. P. 65. (ECF No. 3.) Plaintiff seeks an order “to

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ensure that he is not transferred out of Richard J. Donovan Correctional Facility.” (Id. at

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1.) Plaintiff claims that Defendants are retaliating against him for filing this lawsuit by

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“recommending that the Plaintiff be transferred out of [RJD] to another institution [in]

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Northern California.” (Id. at 3-4.) Plaintiff further claims that this transfer will

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“significantly put his life on danger or risk of serious harm or injury.” (Id. at 4.)

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Defendants are hereby ordered to respond to Plaintiff’s motion by June 23, 2017.
IV.

Conclusion and Order

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Good cause appearing, the Court:

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1)

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF Doc. No. 2).
2)

DIRECTS the Secretary of the CDCR, or his designee, to collect from

Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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3)

DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;
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ORDERS Defendants to file a response to Plaintiff’s Motion for Restraining

Order and Preliminary Injunction (ECF No. 3) by June 23, 2017.
DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 4).

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A separate Order screening Plaintiff’s Complaint pursuant to 28 U.S.C.

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§ 1915(e)(2) & § 1915A will issue at a later time.

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IT IS SO ORDERED.

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Dated: June 14, 2017
Hon. Barry Ted Moskowitz, Chief Judge
United States District Court

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