Opinion
CV-24-00191-TUC-SHR
08-09-2024
Eugene P. Patterson, Plaintiff, v. United States of America, et al., Defendants.
ORDER
Honorable Scott H. Rash United States District Judge
Self-represented Plaintiff Eugene P. Patterson, who is confined in the United States Penitentiary-Tucson, filed a civil rights Complaint pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court directed Plaintiff to pay the filing and administrative fees or file an Application to Proceed In Forma Pauperis. On May 10, 2024, Plaintiff filed a Motion for Extension of Time (Doc. 6), a Motion to Appoint Counsel (Doc. 7), and an incomplete Application to Proceed In Forma Pauperis (Doc. 8). On May 30, 2024, Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. 10). On July 15, 2024, he filed a “Motion for Objections” (Doc. 12).
The Court will deny the deficient Application to Proceed and will give Plaintiff 30 days to pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. The Court will also grant Plaintiff's Motion for Leave to File an Amended Complaint and deny the Motion for Extension of Time, Motion to Appoint Counsel, and Motion for Objections.
I. Payment of Filing Fee
When bringing an action, a prisoner must either pay the $350.00 filing fee and a $55.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of indigence and a certified copy of the inmate's trust account statement (or institutional equivalent) for the six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each institution where he was confined during the six-month period. Id. To assist prisoners in meeting these requirements, the Court requires use of a form application. LRCiv 3.4.
If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an initial partial filing fee of 20% of either the average monthly deposits or the average monthly balance in Plaintiff's account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of the $350.00 filing fee will be collected in monthly payments of 20% of the preceding month's income credited to an inmate's account, each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2).
II. Application Fails to Comply With Statute
Plaintiff has used the court-approved form, but the “Certificate of Correctional Official as to Status of Applicant's Trust Account” section is not completed, and Plaintiff has not submitted a certified six-month trust account statement (or institutional equivalent). In light of these deficiencies, the Court will deny the Application to Proceed and will give Plaintiff 30 days to either pay the $405.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis and certified six-month trust account statement.
Although Plaintiff attached a printout of his inmate bank account statement to his Application to Proceed, the printout is not certified by an authorized officer of the institution and does not show deposits and average monthly balances, as required.
III. Motions
A. Motion for Extension of Time
In his “Motion for Extension of Time,” Plaintiff asks to be allowed to make incremental payments toward the filing fee. As the Court explained in a previous Order, in order to make incremental payments Plaintiff must file a properly completed Application to Proceed In Forma Pauperis and certified six-month trust account statement. The Court will deny Plaintiff's “Motion for Extension of Time.”
B. Counsel
Plaintiff asks for the Court to appoint counsel to represent him in this case because he has mental health issues, this case involves complex medical claims, Plaintiff lacks knowledge of the law, he has requested a jury trial, and he has a high school education and not a legal education.
There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request an attorney to represent any person unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these factors is dispositive and both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Having considered both elements, the Court finds no exceptional circumstances are present and appointment of counsel in this case is not required. Plaintiff is in no different position than many self-represented prisoner litigants. Thus, the Court will deny without prejudice Plaintiff's Motion to Appoint Counsel. .... ....
C. Leave to Amend
Plaintiff seeks permission to file an amended complaint. The Court will grant Plaintiff's Motion. Plaintiff may file an amended complaint within 30 days of the filing date of this Order. If Plaintiff does not file an amended complaint within 30 days, the Court will screen the original Complaint. Plaintiff must clearly designate on the face of the document it is the “First Amended Complaint.” The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. RichardFeiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action raised in the original Complaint and voluntarily dismissed or dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
D. Motion for Objections
In his “Motion for Objections,” Plaintiff asks the Court please “remove Court[']s Order of Dismissal.” There is no order of dismissal in this case. The Court will therefore deny the Motion.
IV. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 8) is denied without prejudice.
(2) Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee and $55.00 administrative fee or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement (or institutional equivalent).
(3) If Plaintiff fails to either pay the $350.00 filing fee and $55.00 administrative fee or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff and deny any pending unrelated motions as moot.
(4) Plaintiff's Motion for Extension of Time (Doc. 6) is denied.
(5) Plaintiff's Motion to Appoint Counsel (Doc. 7) is denied.
(6) Plaintiff's Motion for Leave to file Amended Complaint (Doc. 10) is granted; Plaintiff may file an amended complaint within 30 days of the filing date of this Order.
(7) Plaintiff's Motion for Objections (Doc. 12) is denied.
(8) The Clerk of Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas) and a civil rights complaint by a prisoner.
Instructions for Prisoners Applying for Leave to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court
You must pay the $350.00 filing fee plus the $55.00 administrative fees for a civil action. If you later file an appeal, you will be obligated to pay the $505.00 filing fee for the appeal.
If you have enough money to pay the full $405.00 filing and administrative fees, you should send a cashier's check or money order payable to the Clerk of the Court with your complaint.
If you do not have enough money to pay the full $405.00 filing and administrative fees, you can file the action without prepaying the fees. However, the Court will assess an initial partial filing fee. The initial partial filing fee will be the greater of 20% of the average monthly deposits or 20% of the average monthly balance in your prison or jail account for the six months immediately preceding the filing of the lawsuit. The Court will order the agency that has custody of you to withdraw the initial partial filing fee from your prison or jail account as soon as funds are available and to forward the money to the Court.
After the initial partial filing fee has been paid, you will owe the balance of the $350.00 filing fee (you will not be required to pay the $55.00 administrative fee). Until the filing fee is paid in full, each month you will owe 20% of your preceding month's income. The agency that holds you in custody will collect that money and forward it to the Court any time the amount in your account exceeds $10.00. These installment fees are calculated on a per-case basis. This means that you will be required to pay 20% of your preceding month's income for each civil non-habeas corpus case in which you have an outstanding filing fee balance. For example, if you are making payments toward filing fee balances in two civil non-habeas corpus cases, 40% of your preceding month's income will be collected each month. The balance of the filing fee may be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial.
To file an action without prepaying the filing fee, and to proceed with an action in forma pauperis, you must complete the attached form and return it to the Court with your complaint. You must have a prison or jail official complete the certificate on the bottom of the form and attach a certified copy of your prison or jail account statement for the last six months. If you were incarcerated in a different institution during any part of the past six months, you must attach a certificate and a certified copy of your account statement from each institution at which you were confined. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied.
Even if some or all of the filing fee has been paid, the Court is required to dismiss your action if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim upon which relief can be granted; or (4) your complaint makes a claim against a defendant for money damages and that defendant is immune from liability for money damages.
If you file more than three actions or appeals which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from filing any other action in forma pauperis unless you are in imminent danger of serious physical injury.
(Form Omitted)