Fonseca v. University Medical Center et al

Filing 2

ORDER Directing Monthly Payments be made from Prison Account of Timothy A. Fonseca. Signed by Judge Robert F. Castaneda. (jg1)

Case 3:20-cv-00180-FM-RFC Document 2 Filed 08/10/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
TIMOTHY A. FONSECA,
Plaintiff,

§
§
§
§
§
§
§

v.
UNIVERSITY MEDICAL CENTER, et al.,
Defendants.

No. 3:20-CV-180-FM-RFC

ORDER
On this day, the Court considered the above-captioned cause. The case was referred to this
Court by United States District Judge Frank Montalvo to conduct all preliminary proceedings not
inconsistent with 28 U.S.C. § 636(b) and Appendix C of the Local Rules of this District. For the
reasons that follow, the Court orders that Plaintiff Timothy A. Fonseca’s Application to proceed
in forma pauperis be GRANTED.
I.

IFP Motion

On June 26, 2020, Plaintiff filed an “Application to Proceed In Forma Pauperis.” (ECF
No. 1.) Title 28 U.S.C. § 1915 permits any court to allow a plaintiff to commence an action without
the prepayment of fees if the plaintiff is unable to pay the required fees. 28 U.S.C. § 1915(a)(1).
Further, prisoners1 are required to submit a certified copy of their inmate trust account and must
pay the required fees over time. 28 U.S.C. §§ 1915(a)(2), (b).
Plaintiff’s inmate trust account information indicates that he received an average of $89.99
in deposits per month in the six months preceding the filing of his motion and had an average
monthly account balance of $3.21 over the same period. (ECF No. 1-1:27-30.) Pursuant to the
calculation established by 28 U.S.C. § 1915(b), the Court will grant Plaintiff’s IFP motion and
As used in 28 U.S.C. § 1915, the term “prisoner” includes any person who is incarcerated or detained in any facility
“who is accused of, convicted of, [or] sentenced for . . . violations of criminal law.” 28 U.S.C. § 1915(h).
1

1

Case 3:20-cv-00180-FM-RFC Document 2 Filed 08/10/20 Page 2 of 4

assess an initial filing fee of $18.00, or 20 percent of Plaintiff’s average monthly deposits, to the
nearest cent, over the six-month period preceding the filing of his motion.
II.

COUNSEL MOTION

Next, Plaintiff seeks appointment of counsel. (ECF No. 1:4.) Title 28 U.S.C. § 1915
governs proceedings informa pauperis and authorizes appointment of an attorney to represent any
person unable to afford counsel. 28 U.S.C. § 1915(e)(l). However, there is no automatic right to
the appointment of counsel in a civil rights case, even for indigent plaintiffs. Wright v. Dallas Cty.
Sheriff Dep’t, 660 F.2d 623, 625 (5th Cir. 1981) (per curiam). Rather, “[a] trial court is not required
to appoint counsel for an indigent plaintiff asserting an action under 42 U .S.C. § 1983 unless the
case presents exceptional circumstances.” Branch v. Cole, 686 F.2d 264, 265 (5th Cir. 1982) (per
curiam). To determine whether “exceptional circumstances” exist, the Court considers various
factors, including:
1) the type and complexity of the case;
2) the [plaintiff’s] ability adequately to present and investigate his case;
3) the presence of evidence which largely consists of conflicting testimony so as
to require skill in presentation of evidence and in cross-examination; and
4) the likelihood that appointment will benefit the [plaintiff], the court, and the
defendants by shortening the trial and assisting in just determination.
Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (citations omitted) (internal
quotation marks omitted).
Utilizing these factors, the Court is of the opinion that Plaintiff’s request for appointment
of counsel should be denied. Plaintiff’s complaint and amended complaint do not raise novel
points of law that would indicate the presence of exceptional circumstances. Moreover, Plaintiff
was able to commence this action and articulate his claims and allegations, demonstrating that he
is competent to investigate and present his own case. Lastly, at this early stage of the proceedings,
it is unclear what the evidence will present, and it does not appear that appointment of counsel is
2

Case 3:20-cv-00180-FM-RFC Document 2 Filed 08/10/20 Page 3 of 4

necessary for either judicial economy or the fair administration of justice. Accordingly, the Court
finds that Plaintiff’s request for appointment of counsel should be denied.
III.

CONCLUSION

Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s “Application to
Proceed In Forma Pauperis” (ECF No. 1) is GRANTED and the Court accordingly orders that:
•

The District Clerk SHALL FILE Plaintiff’s civil Complaint (ECF No. 1-1). The
Court will assess an initial partial filing fee of $18;

•

The Court FURTHER DIRECTS Plaintiff to pay the remaining balance of the
fees in periodic installments. Plaintiff shall make payments of twenty percent
(20%) of the preceding month’s income credited to his account, provided the
account exceeds $10.00, until he has paid the total fees of $350.00. The agency
having custody of Plaintiff shall collect this amount from Plaintiff’s account,
when funds are available and when permitted by 28 U.S.C. § 1915(b)(2), and
forward it to the Clerk of the District Court;

•

The Court ALSO DIRECTS the Clerk of the District Court to send via certified
mail a copy of this order to the accounting office or other person(s) or entity with
responsibility for collecting and remitting to the District Court interim filing
payments on behalf of prisoners, as designated by the facility in which Plaintiff is
currently or subsequently confined. Plaintiff is currently in the custody of the El
Paso County Sherriff’s Office;

•

The Court FURTHER ORDERS that service of process shall not issue until the
Court determines whether Plaintiff’s Complaint should be dismissed pursuant to
28 U.S.C. § 1915A. Prior to ordering service of process on Defendants, the Court

3

Case 3:20-cv-00180-FM-RFC Document 2 Filed 08/10/20 Page 4 of 4

will engage in judicial screening of Plaintiff’s Complaint pursuant to 28 U.S.C. §
1915.
SO ORDERED.
SIGNED this 10th day of August, 2020.

ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

4