Maraglino v. Cnty. of San Diego
| Decision Date | 20 October 2015 |
| Docket Number | Civil No. 15-cv-0199 WQH (MDD) |
| Court | U.S. District Court — Southern District of California |
| Parties | DOROTHY MARAGLINO, Booking #12533188, Plaintiff, v. COUNTY OF SAN DIEGO, et al., Defendants. |
1) GRANTING MOTION TO REOPEN CASE AND TO PROCEEDIN FORMA PAUPERISPURSUANT TO 28 U.S.C. § 1915(a)
3) GRANTING MOTION REQUESTING ISSUANCE OF SUMMONS AND DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) ANDFED.R.CIV.P. 4(c)(3)
Currently before the Court is a First Amended Complaint ("FAC") filed by Dorothy Maraglino ("Plaintiff"), a pretrial detainee at Las Colinas Detention and Re-Entry Facility ("LCDF") in Santee, California. Plaintiff is proceeding pro se pursuant to42 U.S.C. § 1983 (ECF No. 4). Also pending are Plaintiff's Motion to Re-open Case (ECF Doc. No. 7), Motion to Appoint Counsel (ECF No. 9), and a Motion Requesting Issuance of Summons and U.S. Marshal Service (ECF No. 11).
In her original Complaint, Plaintiff claimed the County of San Diego, San Diego County Sheriff William D. Gore, Assistant Sheriff Rich Miller, Sheriff's Department Commander Edna Milloy, and Sheriff's Department Deputy St. Nicolas, denied her constitutional rights by implementing a policy change for detainees classified as "protective custody (PC)/administrative segregation (Ad-Seg)" "without notice" in November 2014. Plaintiff claimed that as a result, she was deprived of "court-approved contact visits with her minor child." See Compl. (ECF No. 1) at 3, 6-7. She sought declaratory and injunctive relief as well as nominal, compensatory, and punitive damages. Id. at 8-9.
On February 5, 2015, the Court dismissed Plaintiff's case without prejudice because she failed to either prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) or file a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Plaintiff was granted leave in which to pay the filing fee in full, or to submit a Motion to Proceed IFP, which "include[d] a certified copy of her trust account statement for the 6-month period preceding the filing of her Complaint" as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). Id. at 3. Plaintiff was also cautioned that if she elected to proceed IFP, she would nevertheless remain obligated to pay the entire filing fee in "increments," id. at 2, citing 28 U.S.C. § 1915(b)(1) & (2); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and her Complaint would be subject to a sua sponte screening, and potential dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) if it was found frivolous or malicious, if it failed to state a claim, or if it sought damages from immune defendants. Id. at 3 & n.3.
On February 18, 2015, Plaintiff filed a First Amended Complaint ("FAC") alleging new claims, naming all the previously named Defendants, except Deputy St. Nicolas,1 and adding two additional Defendants, Susan Fiske, and Brian Patterson, both identified as Sheriff's Department Detectives. See FAC (ECF No. 4) at 1, 7. At the same time, she filed a Motion to Proceed IFP (ECF No. 5).
On April 10, 2015, the Court denied Plaintiff's IFP Motion, because it failed to include a certified copy of her trust account statement at LCDF as she was informed was required by 28 U.S.C. § 1915(a)(2) (ECF No. 6). However, Plaintiff was granted an additional 30 days leave in which to submit that accounting. See id. at 5.
On June 30, 2015, Plaintiff submitted a letter to the Court, claiming she never received a copy of the Court's April 10, 2015 Order, and requesting that the Court reopen her case and "approve [her] IFP" based on the trust account statements she attached to her letter. See ECF No. 7 (); see also Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) ().
The Court now GRANTS Plaintiff's Motion to Re-Open, DENIES her later-filed Motion to Appoint Counsel (ECF No. 9), and GRANTS her Motion Requesting the Issuance of Summons and U.S. Marshal Service (ECF No. 11), for the reasons explained below, an in conjunction with mandatory screening of her FAC as is now required by both 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) ().
As Plaintiff was informed on both February 5, 2015, and again on April 10, 2015, 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. See 28 U.S.C. § 1914(a).2 An action may proceed despite the plaintiff's failure to prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
As Plaintiff is also aware, if she is a prisoner at the time of filing, and even if she is granted leave to proceed IFP, her filing fees are not "waived." Instead, she may be permitted to commence suit, but will remain obligated by statute to pay the entire fee in "increments," see Williams, 775 F.3d at 1185, regardless of whether her case is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A "prisoner" is defined as "any person" who at the time of filing is "incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847.
Prisoners who seek leave to proceed IFP must also 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). 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 theprisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
Now attached to Plaintiff's Motion to Re-Open her case is a certified copy of her LCDF trust account statements for the 6-month period immediately preceding the filing of her original Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2. Plaintiff's statements show she had an average monthly balance of $57.96, average monthly deposits of $83.33, and an available balance of $32.33 at the time of filing. Based on this financial information, the Court GRANTS Plaintiff's Motion to Re-Open the Case and to Proceed IFP (ECF No. 7), and assesses her initial partial filing fee to be $16.66 pursuant to 28 U.S.C. § 1915(b)(1).
However, the Court will direct the Watch Commander at LCDF, or his or her designee, to collect this initial fee only if sufficient funds are available in Plaintiff's account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (); Taylor, 281 F.3d at 850 (). The remaining balance of the $350 total fee owed in this case must be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set out in 28 U.S.C. § 1915(b)(1).
Plaintiff has also filed a motion requesting the appointment of counsel to assist her because she is indigent, in custody, has limited access to legal resources, and because she claims an eventual trial will involve conflicting testimony better presented by a trained attorney. See ECF No. 9 at 1.
There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts have some 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 "an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims 'in light of the complexity of the legal issues involved.'" Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
The Court DENIES P...
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