1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 3:20-cv-01007-GPC-BLM 11 LEIGHTON B. DOREY, IV, 12 Booking #17134204, ORDER DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS 13 Plaintiff, AND FOR APPOINTMENT OF 14 vs. COUNSEL PURSUANT TO

(a), (e)(1) 15 [ECF Nos. 2, 3] 16 SAN DIEGO CENTRAL JAIL; WILLIAM GORE, San Diego County AND 17 Sheriff, 18 DISMISSING CIVIL ACTION Defendants. WITHOUT PREJUDICE FOR 19 FAILING TO PREPAY FILING FEES 20 REQUIRED BY

(a) 21 22 Plaintiff Leighton B. Dorey, IV, currently detained at the San Diego Central Jail 23 (“SDCJ”) and awaiting retrial in a capital murder case where he is proceeding in pro per, 24 has filed a complaint alleging the violation of his civil rights and claiming he lacks adequate 25 SDCJ law library access in order to “prepar[e] his defense.” See Compl., ECF No. 1 at 4‒ 26 5. Plaintiff seeks “appropriate damages” and an order “instruct[ing] [SDCJ] to provide 27 meaningful and effective law library access for pro per detainees.”

. 1 Plaintiff has not prepaid the civil filing fee; instead he has filed a Motion to Proceed 2 In Forma Pauperis (“IFP”) pursuant to

(a), and a Motion for Appointment 3 of Counsel pursuant to

(e)(1). See ECF Nos. 2, 3. 4 I. Motion to Proceed IFP 5 Parties instituting any civil action, suit or proceeding in a district court of the United 6 States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 7

(a). The action may proceed despite failure to prepay the entire fee only 8 if the plaintiff is granted leave to proceed IFP pursuant to

(a). See Andrews 9 v. Cervantes,

(9th Cir. 2007); Rodriguez v. Cook,

, 1177 10 (9th Cir. 1999). Prisoners1 granted leave to proceed IFP remain obligated to pay the entire 11 fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __,

, 629 12 (2016); Williams v. Paramo,

(9th Cir. 2015), and regardless of 13 outcome. See

(b)(1) & (2); Taylor v. Delatoore,

(9th 14 Cir. 2002). 15 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 16 of fees to submit an affidavit that includes a statement of all assets possessed and 17 demonstrates an inability to pay. See Escobedo v. Applebees,

(9th Cir. 18 2015). In support of this affidavit, section 1915(a)(2) also clearly requires that prisoners 19 “seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified 20 copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month 21 period immediately preceding the filing of the complaint.”

(a)(2) 22 (emphasis added); Andrews v. King,

(9th Cir. 2005). 23 /// 24 25 1 “As used in this section, the term ‘prisoner’ means any person incarcerated or detained in 26 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, 27 or diversionary program.”

(h). 1 From the certified trust account statement, the Court must assess an initial payment 2 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) 3 the average monthly balance in the account for the past six months, whichever is greater, 4 unless the prisoner has no assets. See

(b)(1);

(b)(4). The 5 institution having custody of the prisoner then must collect subsequent payments, assessed 6 at 20% of the preceding month’s income, in any month in which his account exceeds $10, 7 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 8 § 1915(b)(2); Bruce,

. 9 Here, while Plaintiff has filed a Motion to Proceed IFP, it fails to comply with 28

(a)(2) because it does not include a certified copy of his trust fund account 11 statements, or an “institutional equivalent” issued by SDCJ officials, attesting as to his trust 12 account activity and balances for the 6-month period preceding the filing of this action. See 13

(a)(2); S. D. Cal. CivLR 3.2.b. Without this accounting, the Court remains 14 unable to fulfill its statutory duty to assess the appropriate amount of initial filing fee which 15 may be required to further prosecute his case. See

(b)(1). Accordingly, 16 Plaintiff’s Motion to Proceed IFP must be DENIED. 17 II. Motion for Appointment of Counsel 18 Plaintiff has also filed a Motion for Appointment of Counsel. See ECF No. 3. There 19 is, however, no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social 20 Servs.,

(1981); Palmer v. Valdez,

(9th Cir. 2009). And 21 while

(e)(1) grants the district court limited discretion to “request” that 22 an attorney represent an indigent civil litigant, this discretion is exercised only under 23 “exceptional circumstances,” Agyeman v. Corr. Corp. of America,

, 1103 24 (9th Cir. 2004); see also Terrell v. Brewer,

(9th Cir. 1991), and 25 necessarily depends upon Plaintiff’s IFP status. See

(e)(1) (“The court 26 may request an attorney to represent any person unable to afford counsel.”). 27 /// 1 Because Plaintiff has not yet demonstrated he is eligible to proceed IFP pursuant to 2

(a), he cannot show he is “unable to afford counsel” as required by 3 § 1915(e)(1). Therefore, Plaintiff’s Motion for Appointment of Counsel must also be 4 DENIED. 5 III. Conclusion and Order 6 For the reasons set forth above, the Court: 7 1) DENIES Plaintiff’s Motion to Proceed IFP and Motion to Appoint Counsel 8 (ECF Nos. 2, 3) and DISMISSES this civil action without prejudice for failure to satisfy 9

(a)’s filing fee requirements.2 10 2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 11 re-open the case by: a) prepaying the entire $400 civil filing and administrative fee in full; 12 or b) completing and filing a Motion to Proceed IFP which complies with 28 U.S.C. 13 § 1915(a)(2) and S.D. Cal. CivLR 3.2.b. 14 3) ORDERS the Clerk of the Court to provide Plaintiff with this Court’s 15 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 16 Pauperis.” If Plaintiff fails to either prepay the $400 civil filing fee or complete and submit 17 /// 18 19 20 2 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 22 28 U.S.C. § 1915A(b) and/or

(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,

(9th Cir. 2000) (en banc) 24 (noting that

(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 or seeks damages from defendants who are immune); see also Rhodes v. Robinson, 621

, 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.”). 1 ||the enclosed Motion to Proceed IFP, including a completed prison certificate issued by an 2 || authorized SDCJ trust accounting officer or a certified copy of his SDCJ trust fund account 3 || statements for the 6-month period immediately preceding the filing of this action within 45 4 || days, his case will remain dismissed without prejudice pursuant to

(a) and 5 || without further Order of the Court. 6 IT IS SO ORDERED. 7 ||Dated: June 2, 2020 (3 sate OA ) 8 Hon. Gonzalo P. Curiel 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3:20-cv-01007-GPC-BLM