Lopez v. Ko ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 ADAM REY LOPEZ, Case No.: 3:20-cv-2236-CAB-NLS CDCR #J-27394, 9 ORDER: Plaintiff, 10 vs. 1) GRANTING MOTION TO 11 PROCEED IN FORMA PAUPERIS SAMUEL KO, Primary Care Physician; 12 [ECF No. 4] MAJA BOYD, Nurse Practitioner, 13 Defendants. 2) DENYING MOTION TO APPOINT 14 COUNSEL; AND 15 3) DIRECTING U.S. MARSHAL TO 16 EFFECT SERVICE UPON DEFENDANTS PURSUANT TO 28 17 U.S.C. § 1915(d) AND Fed. R. Civ. P. 18 4(c)(3) 19 20 21 Adam Rey Lopez (“Plaintiff”), currently incarcerated at Centinela State Prison 22 (“CEN”) located in Imperial, California, and proceeding pro se, has filed this civil rights 23 action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1 at 1. Plaintiff did not pay the 24 filing fee required by 28 U.S.C. § 1914(a) at the time of filing; instead, he filed a certified 25 copy of his inmate trust account statement which the Court liberally construes to be a 26 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 27 4). In addition, Plaintiff has filed a Motion to Appoint Counsel. (ECF No. 2.) 28 / / / 1 I. Motion to Proceed IFP 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 $400.1 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 8 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 9 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 10 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 11 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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 28 1 Plaintiff has submitted a copy of his CDCR Inmate Statement Report as well as a 2 Prison Certificate completed by an accounting officer at CEN. See ECF No. 4 at 1-4; 28 3 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements 4 show that Plaintiff has carried an average monthly balance of $353.57 and has had 5 $283.33 in average monthly deposits credited to his account over the 6-month period 6 immediately preceding the filing of his Complaint. In addition, Plaintiff had a balance of 7 $266.57 at the time of filing. See ECF No. 4 at 1-4. 8 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 4) and 9 assesses his initial partial filing fee to be $70.71 pursuant to 28 U.S.C. § 1915(b)(1). The 10 Court will direct the Secretary of the CDCR, or her designee, to collect the initial $70.71 11 filing fee assessed only if sufficient funds are available in Plaintiff’s account at the time 12 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 13 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 14 judgment for the reason that the prisoner has no assets and no means by which to pay the 15 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 16 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 17 case based solely on a “failure to pay ... due to the lack of funds available to him when 18 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 19 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 20 the Court pursuant to 28 U.S.C. § 1915(b)(2). 21 II. Motion to Appoint Counsel 22 Plaintiff also seeks the appointment of counsel pursuant to 28 U.S.C. § 1915 based 23 on the complexity of his claims, his indigence, incarceration, limited ability to 24 investigate, and anticipated need to propound discovery and solicit expert testimony. (See 25 ECF No. 2 at 2-12.) 26 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. 27 of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 28 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to 1 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of 2 America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only 3 under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 4 (9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 5 whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 6 unable to articulate his claims in light of the complexity of the legal issues involved.’” 7 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d 8 at 970). 9 The Court agrees that pro se litigants may be better served with the assistance of 10 counsel—but that is not the test. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 11 1997) (affirming denial of counsel based on claims that pro se plaintiff “may well have 12 fared better-particularly in the realms of discovery and the securing of expert 13 testimony.”), withdrawn in part on reh’g en banc and overruled on other grounds, 154 14 F.3d 952 (9th Cir. 1998). “Concerns regarding investigation and discovery are … not 15 exceptional factors,” and while a pro se litigant “may not have vast resources or legal 16 training,” these are simply among the commonly shared “types of difficulties encountered 17 by many pro litigants.” Wells v. Washington State Dep’t of Corr., No. C13-234 18 RJB/KLS, 2013 WL 4009076, at *1 (W.D. Wash. Aug. 5, 2013). 19 Here, nothing in Plaintiff’s Complaint suggests he is incapable of articulating the 20 factual basis for his Eighth Amendment inadequate medical care claim, which is a typical 21 conditions of confinement claim and “relatively straightforward.” Harrington, 785 F.3d 22 at 1309. In fact, the Court finds, based on its initial screening of Plaintiff’s Complaint 23 under the standards of review discussed below, that he has pleaded sufficient factual 24 content to state a plausible claim for relief. 25 In addition, while Plaintiff may have sufficiently pleaded an Eighth Amendment 26 deliberate indifference claim at this preliminary stage of the proceedings, he has yet to 27 demonstrate and it is too soon to tell whether there is a likelihood of success on the 28 merits. Harrington, 785 F.3d at 1309; Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 1 2014) (affirming denial of counsel where prisoner could articulate his claims in light of 2 the complexity of the issues involved, but did not show likelihood of succeed on the 3 merits). 4 Therefore, the Court finds no “exceptional circumstances” exist at this preliminary 5 stage of the case and DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 2) 6 without prejudice on that basis. 7 III. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 8 A. Standard of Review 9 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 10 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 11 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 12 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 13 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 14 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 15 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 16 the targets of frivolous or malicious suits need not bear the expense of responding.’” 17 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 18 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 22 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 23 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 24 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 25 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 27 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 28 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 8 (9th Cir. 2009). 9 B. 42 U.S.C. § 1983 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 14 1035-36 (9th Cir. 2015). 15 C. Eighth Amendment claims 16 The Court finds Plaintiff’s Complaint contains plausible Eighth Amendment 17 claims sufficient to survive the “low threshold” set to withstand the sua sponte screening 18 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 19 1113, 1123 (9th Cir. 2012); Iqbal, 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 105 20 (1976) (“[D]eliberate indifference to a prisoner’s serious illness or injury states a cause of 21 action under § 1983.”) Therefore, the Court will order the U.S. Marshal to effect service 22 upon Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the 23 court shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. 24 CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 25 or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 26 U.S.C. § 1915.”). 27 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is 28 cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a 1 defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. 2 Cal. 2007). 3 III. Conclusion and Orders 4 Based on the foregoing, the Court: 5 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 6 (ECF No. 4). 7 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 8 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 9 payments from the account in an amount equal to twenty percent (20%) of the preceding 10 month’s income and forward payments to the Clerk of the Court each time the amount in 11 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 12 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 13 TO THIS ACTION. 14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 15 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 16 4. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 2) without 17 prejudice. 18 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 19 No. 1) upon Defendants, and forward it to Plaintiff along with a blank U.S. Marshal Form 20 285 for these Defendants. In addition, the Clerk will provide Plaintiff with certified 21 copies of this Order, certified copies of his Complaint (ECF No. 1), and the summons so 22 that he may serve Defendants. Upon receipt of this “IFP Package,” Plaintiff must 23 complete the USM Form 285 as completely and accurately as possible, include an 24 address where Defendants may be found and/or subject to service pursuant to S.D. Cal. 25 CivLR 4.1c., and return it to the United States Marshal according to the instructions the 26 Clerk provides in the letter accompanying his IFP package. 27 6. ORDERS the U.S. Marshal to serve a copy of the Complaint (ECF No. 1), 28 and summons upon Defendants as directed by Plaintiff on the USM Form 285 provided 1 him. All costs of that service will be advanced by the United States. See 28 U.S.C. 2 1915(d); Fed. R. Civ. P. 4(c)(3). 3 7. ORDERS Defendants, once they have been served, to reply to Plaintiff's 4 ||Complaint within the time provided by the applicable provisions of Federal Rule of Civil 5 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 6 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 7 ||jail, prison, or other correctional facility under section 1983,” once the Court has 8 ||conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 9 || and thus, has made a preliminary determination based on the face on the pleading alone 10 || that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is 11 ||/required to respond). 12 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 13 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants 14 || counsel, a copy of every further pleading, motion, or other document submitted for the 15 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 16 || original document he seeks to file with the Clerk of the Court, a certificate stating the 17 manner in which a true and correct copy of that document has been was served on 18 || Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 19 ||document received by the Court which has not been properly filed with the Clerk or 20 || which fails to include a Certificate of Service upon the Defendants, or their counsel, may 21 || be disregarded. 22 IT IS SO ORDERED. 23 || Dated: November 23, 2020 € ZL 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 28 8