Cleveland v. Xiong ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY CLEVELAND, Case No. 1:22-cv-01366-ADA-BAM 12 Plaintiff, ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL WITHOUT 13 v. PREJUDICE (Doc. 7) 14 BLONG XIONG, et al., ORDER DENYING IN FORMA PAUPERIS APPLICATION WITHOUT PREJUDICE 15 Defendants. (Docs. 1, 7) 16 ORDER REQUING PLAINTIFF TO FILE LONG FORM APPLICATION TO PROCEED 17 IN FORMA PAUPERIS OR PAY FILING FEE WITHIN THIRTY (30) DAYS 18 19 Plaintiff Timothy Cleveland, proceeding pro se, filed this action in the United States 20 District Court, District of Nevada, on October 20, 2022. (Doc. 5.) The matter was transferred to 21 this Court on October 25, 2022. (Doc. 4.) Upon initiation of this action, Plaintiff did not pay the 22 $402.00 filing fee for this action and instead submitted an application to proceed in forma 23 pauperis pursuant to 28 U.S.C. § 1915. (Doc. 1.) 24 On November 2, 2022, the Court determined that Plaintiff’s application was insufficient to 25 determine if he was entitled to proceed without prepayment of fees in this action. The Court 26 therefore issued an order directing Plaintiff to complete and file the Application to Proceed in 27 District Court Without Prepaying Fees or Costs (Long Form) – AO 239 or pay the $402.00 filing 28 1 fee within thirty (30) days following service. (Doc. 6.) Plaintiff was warned that if he failed to 2 comply with the Court’s order, then this action would be dismissed. (Id.) 3 On November 28, 2022, in lieu of filing the Long Form application, Plaintiff filed a 4 document titled “Plaintiff Affidavit to Proceed In Forma Pauperis, and Request for Appointment 5 of Counsel.” (Doc. 7.) The document includes a narrative regarding Plaintiff’s prior action in 6 this district, Cleveland v. Hunton, No. 1:16-cv-01732-AWI-SAB. (Id.) According to Plaintiff, he 7 was granted leave to proceed in forma pauperis in that action in December 2016. (Id. at 2.) The 8 action ultimately was dismissed in February 2018. (Id. at 6.) 9 Plaintiff now contends that the Court’s November 2022 order to complete the Long Form 10 application is not enforceable and “would violate Plaintiff’s right to be free of badges and 11 incidents of slavery prohibited under federal and state law.” (Id. at 2.) Plaintiff avers that he is 12 only required to file an affidavit under 28 U.S.C. § 1915. (Id. at 7.) Plaintiff additionally argues 13 that the Court erroneously concluded that since Plaintiff is the owner of land and provides non- 14 monetary assistance to his elderly parent, then there must be a source of revenue available to pay 15 court fees. (Id.) 16 Plaintiff’s purported affidavit is insufficient for the Court to determine if he is entitled to 17 proceed without prepayment of fees in this action for several reasons. First, Plaintiff’s unsworn 18 affidavit is not signed under penalty of perjury. See 28 U.S.C. § 1746. Second, Plaintiff’s 19 assertion that he was previously granted leave to proceed in forma pauperis in a prior action 20 approximately six (6) years ago is neither conclusive nor determinative in the instant action. 21 Third, Plaintiff’s contention that “his ability to pay the initial partial filing fee is abundantly less 22 probable in this new action in comparison to the original Cleveland v. Hunton action” lacks any 23 evidentiary support. (Doc. 7 at 9.) Fourth, Plaintiff’s statement that he informed the Court “of 24 the only asset in his possession” does not address the Court’s directive to identify all sources of 25 income or money that he receives or otherwise provide the Court with information regarding his 26 financial condition. In order to proceed without prepayment of fees, Plaintiff must demonstrate 27 that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Fifth, 28 Plaintiff’s assertions that the Court’s conclusions in this action are “inaccurate” provide no 1 evidence regarding his assets, sources of income or money, or his financial condition. (Doc. 7 at 2 7.) 3 As the evidence before the Court is inconclusive, the Court will provide Plaintiff with a 4 final opportunity to clarify his financial condition and adequately demonstrate his financial 5 hardship. Accordingly, the Court will order Plaintiff to complete and file the Long Form 6 application. If Plaintiff is unwilling to complete and submit the long form application, Plaintiff 7 must pay the filing fee in full. 8 With regard to Plaintiff’s request for the appointment of counsel, Plaintiff is advised that 9 there is no constitutional right to appointment of counsel in a civil action. See Palmer v. Valdez, 10 560 F.3d 965, 970 (9th Cir. 2009) (“Generally, a person has no right to counsel in civil actions.”); 11 see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 12 154 F.3d 952, 954 n.1 (9th Cir. 1998). The Court cannot require an attorney to represent Plaintiff 13 pursuant to 28 U.S.C. §1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 14 296, 298 (1989). However, in certain exceptional circumstances the Court may request the 15 voluntary assistance of counsel pursuant to section 1915(e)(1). Palmer, 560 F.3d at 970; Rand, 16 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court 17 will seek volunteer counsel only in the most serious and exceptional cases. In determining 18 whether “exceptional circumstances exist, a court must consider the likelihood of success on the 19 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 20 of the legal issues involved.” Palmer, 560 F.3d at 970 (internal quotation marks and citations 21 omitted). 22 In the present case, the Court does not find the required exceptional circumstances. 23 Plaintiff has offered no argument in support of his request for counsel in the present case. Neither 24 his pro se status nor the denial of counsel in his prior action make this case exceptional. Even if it 25 is assumed that Plaintiff is not well versed in the law and that he has made serious allegations 26 which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with 27 similar cases almost daily from pro se plaintiffs. Further, at this early stage in the proceedings, 28 the Court cannot make a determination that Plaintiff is likely to succeed on the merits. There also 1 is no indication from the record that Plaintiff is unable to articulate his claims pro se. 2 Accordingly, Plaintiff’s request for the appointment of counsel will be denied without prejudice. 3 Based on the foregoing, IT IS HEREBY ORDERED as follows: 4 1. Plaintiff’s request for appointment counsel is DENIED without prejudice; 5 2. Plaintiff’s applications to proceed in forma pauperis (Docs. 1, 7) are DENIED without 6 prejudice; 7 3. The Clerk of the Court is requested to forward Plaintiff an Application to Proceed in 8 District Court Without Prepaying Fees or Costs (Long Form) – AO 239; 9 4. Within thirty (30) days from the date of service of this order, Plaintiff shall either (1) 10 pay the $402.00 filing fee for this action, or (2) complete and file the enclosed 11 Application to Proceed in District Court Without Prepaying Fees or Costs (Long 12 Form) – AO 239; 13 5. No extension of time will be granted absent a demonstrated showing of good cause; 14 and 15 6. Plaintiff is warned that the failure to comply with this order will result in 16 dismissal of this action. 17 IT IS SO ORDERED. 18 19 Dated: December 1, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28