Atherley v. Kernan

• Decision Date: 29 April 2020
• Docket Number: Case No.: 3:19-cv-02355-LAB-KSC
• Parties: EDLY A. ATHERLEY, II, CDCR #AY-8220, Plaintiff, v. SCOTT KERNAN, et al., Defendants.
• Court: U.S. District Court — Southern District of California

EDLY A. ATHERLEY, II, CDCR #AY-8220, Plaintiff, v. SCOTT KERNAN, et al., Defendants.

Case No.: 3:19-cv-02355-LAB-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

April 29, 2020

ORDER:

(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS

[ECF No. 2]

(2) DENYING MOTION TO APPOINT COUNSEL

[ECF No. 7]

AND

(3) DISMISSING DEFENDANTS AND CLAIMS PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b)

Plaintiff Edly A. Atherley, II, currently incarcerated at Mule Creek State Prison in Ione, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See "Compl.," ECF No. 1 at 1. Plaintiff seeks to sue almost two dozen correctional and appeals officials for allegedly violating his First, Eighth, and Fourteenth Amendment rights while he was incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, and California State Prison- Los Angeles County ("LAC") from July 2017 through September 2019. Id. at 8-20. He seeks $5 million in general and punitive damages, and injunctive relief enjoining "further retaliation," and the "withholding of good-time credits." Id. at 22.

Plaintiff has not paid the filing fee required by 28 U.S.C. § 1914(a), but instead filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), (ECF No. 2), followed by exhibits in support of his Complaint (ECF No. 5), and a Motion to Appoint Counsel (ECF No. 7).

I. Motion to Proceed IFP

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 of $400.¹ 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.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, ___ U.S. ___, 136 S. Ct. 627, 629 (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 averagemonthly 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, 136 S. Ct. at 629.

In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate Statement Report. See ECF No. 2 at 5-7; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This statement shows Plaintiff carried an average monthly balance of $39.81 and had $49.87 in average monthly deposits credited to his account over the 6-month period immediately preceding the filing of his Complaint. However, Plaintiff had only $.02 to his credit at the time of filing. See ECF No. 2 at 6.

Based on this accounting, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) and assesses no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds available to him when payment is ordered."). The Court will direct the remaining balance of the $350 total fee owed in this case 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).

II. Motion to Appoint Counsel

Plaintiff also seeks the appointment of counsel pursuant to 28 U.S.C. § 1915 based on the purported complexity of his claims, his indigence, incarceration, bipolar disorder, hyperthyroidism, limited ability to investigate, and anticipated need to propounddiscovery and solicit expert testimony. See ECF No. 7 at 1-2.

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).

The Court agrees that pro se litigants may be better served with the assistance of counsel—but that is not the test. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (affirming denial of counsel based on claims that pro se plaintiff "may well have fared better-particularly in the realms of discovery and the securing of expert testimony."), withdrawn in part on reh'g en banc and overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). "Concerns regarding investigation and discovery are ... not exceptional factors," and while a pro se litigant "may not have vast resources or legal training," these are simply among the commonly shared "types of difficulties encountered by many pro litigants." Wells v. Washington State Dep't of Corr., No. C13-234 RJB/KLS, 2013 WL 4009076, at *1 (W.D. Wash. Aug. 5, 2013).

As currently pleaded, nothing in Plaintiff's Complaint suggests he is incapable of articulating the factual basis for his retaliation and excessive force claims, which are typical conditions of confinement claims and "relatively straightforward." Harrington, 785 F.3d at 1309. In fact, the Court finds, based on its initial screening of Plaintiff's Complaint under the standards of review discussed below, that he has pleaded sufficient factual content to state a plausible First and Eighth Amendment claims for relief—at leastwith respect to Defendants Hultz, Strong, Jaramillo, and Pamplin. See Meeks, 2017 WL 476425 at *3 (denying ADA inmate appointment of counsel where inmate "successfully survived screening," and had submitted motions "drafted with clarity and [asserting] proper arguments."); Garcia v. Blahnik, Civil Case No. 3:14-cv-00875-LAB-BGS, 2016 WL 4269561, at *3 (S.D. Cal. Aug. 15, 2016) (finding no "exceptional circumstances warranting a judicial request for a voluntary legal counsel" where Plaintiff's psychiatric disorder and limited access to the law library did not "prevent[] him from filing a well-articulated complaint and other motions with the Court.").

In addition, while Plaintiff may have sufficiently pleaded retaliation and excessive force claims against Defendants Hultz, Strong, Jaramillo, and Pamplin at this preliminary stage of the proceedings, he has yet to demonstrate and it is too soon to tell whether there is a likelihood he will succeed on the merits. Harrington, 785 F.3d at 1309; Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel where prisoner could articulate his claims in light of the complexity of the issues involved, but did not show likelihood of succeed on the merits); see also Dickey v. Strayhorn, Civil Case No. 3:17-cv-00546-JLS-JLB, 2017 WL 3118797, at *1 (S.D. Cal. July 21, 2017), reconsideration denied, Civil Case No. 3:17-cv-00546-JLS-JLB, 2017 WL 4271975 at *1 (S.D. Cal. Sept. 26, 2017) ("To demonstrate that he has a likelihood of success at trial, Plaintiff must do more than merely allege that one of his constitutional rights was violated. He must provide evidence to the effect that he has a likelihood of success on the merits of his allegations."); Torbert v. Gore, Civil Case No. 3:14-cv-02991-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016) ("A plaintiff that provides no evidence of his likelihood of success at trial fails to satisfy the first factor of the [exceptional circumstances] test.")

Therefore, the Court finds no "exceptional circumstances" exist at this preliminary stage of the case and DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 7) without prejudice on that basis.

///

III. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

A. Standard of Review

Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-answer screening 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 of it, which 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...