Fuentes v. Montgomery ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 20cv1942-LAB-RBM JONATHAN FUENTES, 12 CDCR # BA-1693 ORDER: 13 Plaintiff, (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 PURSUANT TO 28 U.S.C. § 1915(a) v. AND DISMISSING CIVIL ACTION 16 WITHOUT PREJUDICE FOR 17 FAILING TO PREPAY FILING FEES REQUIRED BY 28 U.S.C. § 1914(a), 18 and W. L. MONTGOMERY, et al., 19 Defendants. (2) DENYING MOTION FOR 20 APPOINTMENT OF COUNSEL 21 [ECF Nos. 1-3] 22 23 24 Jonathan Fuentes, a state prisoner proceeding pro se, has filed a civil rights action 25 (ECF No. 1), along with a copy of his inmate trust account statement, which the Court 26 construes as a Motion to Proceed In Forma Pauperis (“IFP”), (ECF No. 2). Fuentes has 27 also filed a Motion for Appointment of Counsel (ECF No. 3). 1 I. Motion to Proceed In Forma Pauperis 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 7 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy 8 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). 11 From the certified trust account statement, the Court assesses an initial payment of 12 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 13 average monthly balance in the account for the past six months, whichever is greater, unless 14 the prisoner has no assets. See 28 U.S.C. § 1915(b)(1)&(4). Subsequent payments, 15 assessed at 20% of the preceding month’s income, are collected in any month in which his 16 account exceeds $10, and forwarded to the Court until the entire filing fee is paid. See 28 17 U.S.C. § 1915(b)(2). Prisoners who are granted leave to proceed IFP remain obligated to 18 pay the entire fee in monthly installments regardless of whether their action is ultimately 19 dismissed. Bruce v. Samuels, 577 U.S. 82, 85, 136 S. Ct. 627, 629 (2016); 28 U.S.C. 20 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 21 In support of his IFP Motion, Plaintiff has submitted a copy of his California 22 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report which 23 indicates his account balance as of the date of the statement, but which is not attested to by 24 a CDCR official. (ECF No. 2 at 1.) Accordingly, the Motion doesn’t comply with 25 28 U.S.C. § 1915(a)(2) because it doesn’t include a certified copy of his trust fund account 26 statements or an “institutional equivalent” issued by CDCR officials attesting as to his trust 27 account activity and balances for the 6-month period preceding the filing of this action. 1 See 28 U.S.C. § 1915(a)(2); CivLR 3.2.b. Without this accounting, the Court can’t fulfill 2 its statutory duty to assess the appropriate amount of the initial filing fee that may be 3 required to further prosecute his case. See 28 U.S.C. §1915(b)(1). Plaintiff’s Motion to 4 Proceed In Forma Pauperis is DENIED WITHOUT PREJUDICE. 5 II. Motion for Appointment of Counsel 6 Plaintiff has also filed a Motion for Appointment of Counsel. (ECF No. 3.) He 7 states that appointment of counsel is appropriate because he cannot afford counsel and due 8 to the CDCR restrictions imposed under the Covid-19 pandemic, which have reduced his 9 ability to utilize resources ordinarily available to him such as time in the prison law library 10 or assistance from other inmates. (Id. at 1-3.) 11 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social 12 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). While 13 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to request an attorney 14 represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 15 1103 (9th Cir. 2004), this discretion may be exercised only under “exceptional 16 circumstances,” id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), and 17 it necessarily depends upon Plaintiff’s IFP status. See 28 U.S.C. § 1915(e)(1) (“The court 18 may request an attorney to represent any person unable to afford counsel.”) 19 Because Plaintiff hasn’t been granted leave to proceed IFP pursuant to 28 U.S.C. 20 § 1915(a) and (b) in this case and hasn’t provided the Court with sufficient financial 21 information to determine indigency, he isn’t eligible for appointment of counsel pursuant 22 to § 1915(e)(1) at this time. Accordingly, Plaintiff’s motion is DENIED WITHOUT 23 PREJUDICE. 24 III. Conclusion and Order 25 (1) Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED and this action is 26 DISMISSED WITHOUT PREJUDICE for failure to prepay the filing fee as required by 27 28 U.S.C. § 1914(a). l (2) Plaintiff's Motion for Appointment of Counsel is DENIED WITHOUT 2 || PREJUDICE. (ECF No. 3.) 3 (3) Plaintiff has forty-five (45) days leave from the date this Order is filed to: 4 || (a) prepay the entire $400 civil filing and administrative fee in full; or (b) complete and file 5 ||a Motion to Proceed IFP which complies with 28 U.S.C. § 1915(a)(2) and CivLR 3.2(b). 6 || The Clerk of the Court will provide Plaintiff with this Court’s approved form “Motion and 7 || Declaration in Support of Motion to Proceed In Forma Pauperis.” If Plaintiff fails to either 8 || prepay the civil filing fee or complete and submit the enclosed Motion to Proceed IFP 9 || within 45 days, the Court will order this action to be closed.! 10 IT IS SO ORDERED. 11 || Dated: October 16, 2020 (au At Zn 12 Hon. Larry Alan Burns 3 Chief United States District Judge 14 15 16 17 18 19 90 ||' Plaintiff is cautioned that if he chooses to proceed further by either prepaying the full $400 civil filing fee, or submitting a properly supported Motion to Proceed IFP, his 21 Complaint will be reviewed before service and may be dismissed sua sponte pursuant to 92 ||28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the full $400 filing fee at once, or is granted IFP status and is obligated to pay the full filing 23 || fee in installments. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 34 || (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that is frivolous, malicious, fails to state a claim, 25 |lor seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621 26 1002, 1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all complaints filed by prisoners “seeking redress from a governmental entity 27 |! or officer or employee of a governmental entity.”)