Acosta v. Servin
| Decision Date | 24 February 2021 |
| Docket Number | Case No. 20cv2225-MMA-MSB |
| Parties | JOSHUA CHARLES ACOSTA, CDCR #BI-1477, Plaintiff, v. Y. SERVIN, Psychologist, Calipatria State Prison; DOE 1, Psychologist, Wasco State Prison; DOE 2, Chief Medical Officer, Wasco State Prison; DOE 3, Chief Health Officer, Calipatria State Prison, Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS;
Plaintiff Joshua Charles Acosta, proceeding pro se and currently incarcerated at Calipatria State Prison ("CAL") in Imperial, California, filed this civil rights action pursuant 42 U.S.C. § 1983 in the Central District of California on October 28, 2020. See "Compl.," Doc. No. 1 at 1. Plaintiff claims CAL Psychologist Y. Servin, CAL's Chief Mental Health Officer ("Doe 3"), and an unidentified psychologist and Chief Medical Officer at Wasco State Prison ("Does 1 & 2"), violated his rights under the Americans with Disabilities Act ("ADA"), his "protections under the Armstrong, Coleman, and Clark remedial plans," and the Eighth Amendment by "hous[ing] [him] within the mainline population" at both CAL and Wasco despite his autism. Id. at 3-6. Plaintiff seeks $250,000 in compensatory damages, an injunction requiring Defendants "to identify, assess, and treat people with autism spectrum disorder," and Defendants' "termination of employment." Id. at 7.
Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time of filing, but instead submitted an Application to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2), as well as an ex parte Motion for Assignment of Counsel. See Doc. No. 3. On November 13, 2020, however, the Honorable Cormac J. Carney determined venue did not lie in the Central District of California, and transferred the action here in the interest of justice pursuant to 28 U.S.C. § 1406(a).1 See Doc. No. 5.
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a "certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85-86.
In support of his IFP Motion, Plaintiff has submitted a certificate of funds and a certified copy of his CDCR trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff's trust account activity, which shows that he carried an average monthly balance of $86.42, had $84.42 in average monthly deposits to his trust account for the six months preceding the filing of this action, and an available balance of $31.92 at the time of filing. See Doc. No. 2 at 3-6.
Based on this accounting, the Court GRANTS Plaintiff's Application to Proceed IFP and assesses a partial filing fee of $17.28 pursuant to 28 U.S.C. § 1915(b)(1). However, the Court directs the Secretary of the CDCR, or her designee, to collect this initial filing fee only if sufficient funds are available in Plaintiff's account at the time thisOrder is executed. See 28 U.S.C. § 1915(b)(4) (); Bruce, 577 U.S. at 84; Taylor, 281 F.3d at 850 (). The remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).
Plaintiff also seeks the appointment of counsel to assist him because he is indigent, autistic, lacks legal experience, has limited access to legal materials, and claims his case is complex and will "necessitate serious discovery proceedings" to prepare for summary judgment and trial. See Doc. No. 3 at 3.
However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to "request" that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under "exceptional circumstances." Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires the Court "to consider whether there is a 'likelihood of success on the merits' and whether 'the prisoner is unable to articulate his claims in light of the complexity of the legal issues involved.'" Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970).
As currently pleaded, Plaintiff's Complaint demonstrates neither the likelihood of success nor the legal complexity required to support the appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at970. First, while Plaintiff may not be formally trained in law, his allegations, as liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully capable of articulating the facts and circumstances relevant to his purported claim, which does not appear to be legally complex. Agyeman, 390 F.3d at 1103. Second, for the reasons discussed more fully below, Plaintiff's Complaint requires sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and it is simply too soon to tell whether he will be likely to succeed on the merits of either an ADA or Eighth Amendment claim for relief. Id.; cf. Garcia v. Smith, 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) ().
Therefore, the Court finds no "exceptional circumstances" currently exist and DENIES Plaintiff's Motion for Assignment of Counsel (Doc. No. 3) without prejudice on that basis. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) ().
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion thereof, if it is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). "The purpose of [screening] is 'to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
// "The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) ().
Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556...
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