Jacome v. Vlahakis et al

Filing 7

ORDER Granting 5 Motion for Leave to Proceed in forma pauperis; Denying 2 Motion for Appointment of Counsel; and Directing US Marshal to Effective Service. Signed by Judge Gonzalo P. Curiel on 2/14/18. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (dlg)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ALEXANDER JACOME,
068227-8,

ORDER:

Plaintiff,

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Case No.: 3:18-cv-0010-GPC-MDD

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 5]

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DIMITRIS VLAHAKIS, et al.
2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 2]; AND

Defendants.

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AND

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3) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE PURSUANT TO
28 U.S.C. § 1915(d) AND
Fed. R. Civ. P. 4(c)(3)

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Alexander Jacome (“Plaintiff”), proceeding pro se, and civilly detained at

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Atascadero State Hospital (“ASH”) in Atascadero, California, has filed this civil action

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pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has filed a Motion to Proceed In

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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 4), along with a

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Motion to Appoint Counsel (ECF No. 2).
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Before the Court could conduct the required sua sponte screening, Plaintiff filed a

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First Amended Complaint (“FAC”) (ECF No. 6) which is the operative pleading.

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I.

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Motion to Proceed IFP
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).
However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the

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full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison

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Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined

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by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility who is

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accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of

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criminal law or the terms and conditions of parole, probation, pretrial release, or

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diversionary program.” 28 U.S.C. § 1915(h).
A “civil detainee” on the other hand, like Plaintiff, is not a “prisoner” within the

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meaning of the PLRA. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir 2005); Agyeman,

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296 F.3d at 886 (holding that INS detainee not also facing criminal charges is not a

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“prisoner” under § 1915); see also Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000)

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(person confined under California’s Sexually Violent Predator Law, while a “a ‘prisoner’

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within the meaning of the PLRA when he served time for his conviction, . . . ceased

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being a ‘prisoner’ when he was released from the custody of the Department of

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Corrections.”); Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D. Cal. 2008) (holding

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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.
June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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plaintiff “adjudicated NGI [not guilty by reason of insanity] and committed to [Napa

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State Hospital] as a result of that adjudication” was “not a prisoner as defined by the

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PLRA.”).
Thus, because Plaintiff is a civilly committed patient at ASH, and not a “prisoner”

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as defined by 28 U.S.C. § 1915(h) when he filed this action, the filing fee provisions of

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28 U.S.C. § 1915(b) do not apply. Andrews, 398 F.3d at 1122. Therefore, the Court has

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reviewed Plaintiff’s affidavit of assets, just as it would for any other non-prisoner litigant

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seeking IFP status, and finds it is sufficient to show that he is unable to pay the fees or

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post securities required to maintain this action. See S.D. CAL. CIVLR 3.2(d). Accordingly,

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

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(ECF No. 4).

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II.

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Motion for Appointment of Counsel
Plaintiff seeks appointed counsel in this matter on the grounds that he is indigent

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and is “not experienced as a person who is professionally trained” in legal matters. (Pl.’s

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Mot., ECF No. 2, at 1-2.) However, there is no constitutional right to counsel in a civil

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case. Lassiter v. Dept. of Social Servs, 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court

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limited discretion to “request” that an attorney represent an indigent civil litigant,

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

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may be exercised only under “exceptional circumstances.” Id.; see also Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires the

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Court “to consider whether there is a ‘likelihood of success on the merits’ and whether

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‘the prisoner is unable to articulate his claims in light of the complexity of the legal issues

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involved.’” Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting

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Palmer, 560 F.3d at 970).

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The Court denies Plaintiff’s request without prejudice because nothing in his FAC,

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or in his Motion to Appoint Counsel, suggests he is incapable of articulating the factual

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basis for his discrimination claims, which appear “relatively straightforward.” Id. In fact,
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the Court finds, based on its screening of Plaintiff’s FAC under the standards of review

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discussed below, that Plaintiff has pleaded sufficient factual content to state plausible

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claims. However, at this initial stage of the pleadings, Plaintiff has not yet shown a

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likelihood of success on the merits. Id. Therefore, the Court finds no “exceptional

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circumstances” and DENIES his Motion to Appoint Counsel (ECF No. 2) on that basis.

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III.

Screening Pursuant to 28 U.S.C. § 1915(e)(2)

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A complaint filed by any person proceeding in forma pauperis is subject to sua

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sponte dismissal, however, if it is “frivolous, malicious, fail[s] to state a claim upon which

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relief may be granted, or seek[s] monetary relief from a defendant immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to

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prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection

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1915(e) not only permits, but requires a district court to dismiss an in forma pauperis

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complaint that fails to state a claim.”).

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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 not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a

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complaint states a plausible claim for relief [is] . . . a context-specific task that requires the

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reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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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 also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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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.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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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, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

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essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the

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

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As currently pleaded, the Court finds that Plaintiff’s FAC contains factual

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allegations sufficient to survive the “low threshold” for proceeding past the sua sponte

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screening required by 28 U.S.C. §§ 1915(e)(2), because it alleges claims which are

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plausible on its face.2 See Wilhelm, 680 F.3d at 1123. See Iqbal, 556 U.S. at 678.

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Accordingly, the Court will direct the U.S. Marshal to effect service upon the
named Defendants on Plaintiff’s behalf.3 See 28 U.S.C. § 1915(d) (“The officers of the

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Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative
of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [any individual
defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D.
Cal. 2007).

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Plaintiff must, of course, identify the Defendants he references only as “SDCJ
Intake/Booking Deputies, 3-4 Deputies at ARCO in IB and Officers who trained
Defendants,” whose names are presently unknown (ECF No. 6), by their true names and
substitute those individual persons in place of each unnamed Doe by amending his
Complaint to identify each of those parties before the United States Marshal will directed
to execute service upon any of them. See Aviles v. Village of Bedford Park, 160 F.R.D.
565, 567 (1995) (Doe defendants must be identified and served within [90] days of the
commencement of the action against them); Fed. R. Civ. P. 15(c)(1)(C) & 4(m). Generally,
Doe pleading is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). It is in
most instances impossible for the United States Marshal to serve a party identified only as
a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly
effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the
information necessary to identify the defendant.”). However, the Court will not dismiss
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court shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R.

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CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal

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or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

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U.S.C. § 1915.”).

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IV.

Conclusion and Order

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For the reasons explained, the Court:

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DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 2);

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

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(ECF No. 2);

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DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 6)

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

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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 FAC and the summons so that he may serve these Defendants.

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Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely

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and accurately as possible, include an address where each named Defendant may be

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found and/or subject to service, and return them to the United States Marshal according

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to the instructions the Clerk provides in the letter accompanying his IFP package.

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ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon

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the named Defendants as directed by Plaintiff on the USM Form 285s provided to him.

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All costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d);

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

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Plaintiff’s claims against the Doe Defendants at this time because where the identity of an
alleged party is not known prior to filing of an action, Ninth Circuit authority permits
Plaintiff the opportunity to pursue appropriate discovery to identify the unknown Does,
unless it is clear that discovery would not uncover their identity, or his Complaint should
be dismissed for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (citing Gillespie, 629 F.2d at 642).
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ORDERS Defendants, once they have been served, to reply to Plaintiff’s

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FAC within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

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permitted to “waive the right to reply to any action brought by a prisoner confined in any

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jail, prison, or other correctional facility under section 1983,” once the Court has

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conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

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and thus, has made a preliminary determination based on the face on the pleading alone

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that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is

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required to respond); and
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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’

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counsel, a copy of every further pleading, motion, or other document submitted for the

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Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every

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original document he seeks to file with the Clerk of the Court, a certificate stating the

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manner in which a true and correct copy of that document has been was served on

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Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any

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document received by the Court which has not been properly filed with the Clerk or

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which fails to include a Certificate of Service upon Defendants may be disregarded.

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IT IS SO ORDERED.

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Dated: February 14, 2018

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