Mascorro v. The County of San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ELOY MASCORRO, Case No.: 21cv2012-LL-AGS 12 Plaintiff, ORDER: (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 14 THE COUNTY OF SAN DIEGO; THE [ECF No. 2]; (2) DENYING SAN DIEGO SHERRIFS DEPARTMENT; 15 PLAINTIFF’S MOTION TO SAN DIEGO SHERIFF; SHERIFF APPOINT COUNSEL [ECF No. 3]; 16 DEPUTIES; JAIL STAFF; C.L.E.R.B., AND (3) ORDERING PLAINTIFF TO 17 Defendants. PROPERLY AND TIMELY SERVE PROCESS [20] 21 I. Background 22 On November 30, 2021, Plaintiff, Eloy Mascorro, proceeding pro se, filed a civil 23 rights action against the above named Defendants. Plaintiff recently filed two other civil 24 rights actions against municipal and law enforcement entities, as well as multiple named 25 and unnamed individuals. See Mascorro v. The City of San Diego, et al., 21cv1427-LL26 AGS (“Mascorro I”) and Mascorro v. The City of San Diego, et al., 21cv1725-LL-AGS 27 (“Mascorro II”). Plaintiff alleges that between 2017 and 2021, while he was an inmate at 28 least four different times at the Downtown Jail and George Baily Facility, his rights were 1 violated based on numerous incidents mostly related to denials of Plaintiff’s various 2 requests for medical care and abusive and discourteous behavior by jail staff. As he did 3 with his two previous cases, Plaintiff filed Mascorro filed a motion to appoint counsel [ECF 4 No. 2] and a motion for leave to proceed in forma pauperis (“IFP”) [ECF No. 3]. The 5 motions are suitable for determination on the papers submitted and without oral argument. 6 See Fed. R. Civ. P. 78(b); S.C. Cal. CivLR 7.1(d)(1). 7 II. Motion to Appoint Counsel 8 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 9 Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, federal courts do not 10 have the authority “to make coercive appointments of counsel.” Mallard v. U.S. Dist. Ct., [11] 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 12 564, 569 (9th Cir. 1995). Districts courts have discretion, however, pursuant to 28 U.S.C. 13 § 1915(e)(1) to “request” that an attorney represent indigent civil litigants upon a showing 14 of “exceptional circumstances.” See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101 , 1103 15 (9th Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking 16 assistance requires at least an evaluation of the likelihood of the plaintiff’s success on the 17 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 18 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. 19 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 20 1015, 1017 (9th Cir. 1991). 21 Plaintiff argues that he needs counsel for the same reasons he stated in his two other 22 cases in both his initial motions as well as in his motions for reconsideration. See Mascorro 23 I, 21cv1427-LL-AGS, ECF Nos. 3, 6, 16; Mascorro II, 21cv1725-LL-AGS, ECF Nos. 2, 24 7. In both cases, Judge Bashant, or the below signed judge, denied Plaintiff’s motions. As 25 stated by Judge Bashant, “while the Court does not discount Mascorro’s hardships, 26 including his homelessness, lack of financial resources, and lack of government-issued 27 identification, Mascorro’s court filings establish that he is capable of legibly articulating 28 the facts and circumstances relevant to the claims raised in the Complaint.” Mascorro I, 1 21cv1427-LL-AGS, ECF No. 8 at 5. Additionally, “Mascorro’s pleading suggests that he 2 or she is capable of legibly articulating the facts and circumstances relevant to the claims 3 raised in the Complaint.” Mascorro II, 21cv1725-LL-AGS, ECF No. 4 at 2. Accordingly, 4 the Court declines to exercise its limited discretion to request that an attorney represent 5 him pro bono pursuant to 28 U.S.C. § 1915 (e)(1). See Lassiter v. Dept. of Soc. Servs., 452 6 U.S. 18 , 25 (1981); Agyeman, 390 F.3d at 1103. 7 III. Motion to Proceed IFP 8 Under 28 U.S.C. § 1915 , a litigant who because of indigency is unable to pay the 9 required fees or security to commence a legal action may petition the court to proceed 10 without making such payment. The determination of indigency falls within the district 11 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d 12 on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the 13 reviewing court to exercise its sound discretion in determining whether the affiant has 14 satisfied the statute’s requirement of indigency”). It is well-settled that a party need not be 15 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 16 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915 (a), “an affidavit [of 17 poverty] is sufficient which states that one cannot because of his poverty pay or give 18 security for costs . . . and still be able to provide himself and dependents with the necessities 19 of life.” Id. at 339 . At the same time, however, “the same even-handed care must be 20 employed to assure that federal funds are not squandered to underwrite, at public expense 21 . . . . the remonstrances of a suitor who is financially able, in whole or in material part, to 22 pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 23 District courts, therefore, tend to reject IFP applications where the applicant can pay 24 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, [25] 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that a district court did not abuse its 26 discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 27 salary and who received $110 per month from family), vacated in part on other grounds, 28 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma pauperis status 1 may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult 2 Insts., No. CIV S-06-0791, 2009 WL 311150 , at *2 (E.D. Cal. Feb. 9, 2009) (citing 3 Stehouwer, 841 F. Supp. at 321 ); see also Allen v. Kelly, 1995 WL 396860 , at *2 (N.D. 4 Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 5 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 6 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 7 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 8 Having read and considered Plaintiff’s application, the Court finds, again, that 9 Plaintiff meets the requirements for IFP status under 28 U.S.C. § 1915 . Plaintiff is 10 unemployed, owns $20 in cash, and does not have any money in a checking, savings, or 11 other bank account. ECF No. 2 at ¶¶ 2, 4. Plaintiff receives $238 in public assistance and 12 $80 in “food rebates” every month but spends most of the monthly income to buy food and 13 pay for laundry. Id. ¶¶ 1, 8 . Further, Plaintiff does not own any real estate, an automobile, 14 or any other significant assets. Id. ¶ 5 . Under these circumstances, the Court finds that 15 requiring Plaintiff to pay the court filing fees would impair his or her ability to obtain the 16 necessities of life. See Adkins, 335 U.S. at 339. 17 IV. Service of Process 18 As noted in this Court’s orders in Plaintiff’s two other cases, “[t]he plaintiff is 19 responsible for having the summons and complaint served within the time allowed by Rule 20 4(m) and must furnish the necessary copies to the person who makes service.” Fed. R. Civ. 21 P. 4 (c)(1). “If a defendant is not served within 90 days after the complaint is filed, the court 22 – on motion or on its own after notice to the plaintiff – must dismiss the action without 23 prejudice against that defendant or order that service be made within a specified time.” 24 Fed. R. Civ. P. 4(m); see also S.D. Cal. Civ. R. 41.1(a) (providing that “[a]ctions or 25 proceedings which have been pending for more than six months, without any proceeding 26 or discovery having been taken therein during such period, may, after notice, be dismissed 27 by the court for want of prosecution”); States S. S. Co. v. Philippine Air Lines, 426 F.2d 28 803, 804 (9th Cir. 1970) (affirming “[t]hat a court has power to dismiss an action for want 1 of prosecution on its own motion, both under Rule 41 (b), F. R. Civ. P., or under its local 2 rule, or even in the absence of such rules, is settled in this circuit”). “The exercise of the 3 power to dismiss is discretionary and will be reversed only for an abuse.” States S. S. Co., [4] 426 F.2d at 804 . “In determining whether to dismiss a claim for failure to prosecute or 5 failure to comply with a court order, the Court must weigh the following factors: (1) the 6 public’s interest in expeditious resolution of litigation; (2) the court's need to manage its 7 docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less 8 drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 9 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). “The public’s interest in 10 expeditious resolution of litigation always favors dismissal.” Id. 11 In Plaintiff’s two other cases, it appears as if he failed to timely and properly serve 12 process. Accordingly, Plaintiff is ORDERED to serve a copy of the summons and 13 complaint on named Defendants, most importantly the County of San Diego, and to file 14 proof of service on CM/ECF within 90 days after the summons is issued. The manner of 15 service must be consistent with the Federal Rules of Civil Procedure for service of process, 16 most importantly, Rule 4. Failure to properly or timely serve named defendants, or to 17 timely file proof of service, will result in dismissal of the case without prejudice. 18 V. Conclusion 19 Plaintiff’s motion for appointment of counsel [ECF No. 2] is DENIED. Plaintiff’s 20 motion to proceed IFP [ECF No. 3] is GRANTED. Additionally, Plaintiff is ORDERED 21 to serve a copy of the summons and complaint on named Defendants, most importantly the 22 County of San Diego, and to file proof of service on CM/ECF within 90 days after the 23 summons is issued. Finally, Plaintiff may, in accordance with ECF Administrative Policies 24 and Procedures,1 use the Court’s CM/ECF filing system to electronically file documents 25 and receive electronic notice of case-related transmissions, so long as Plaintiff properly [28] 1 ||registers as a CM/ECF user with the Clerk’s Office on or before April 8, 2022. 2 IT IS SO ORDERED. 3 || Dated: March 3, 2022 MO 4 QF) 5 Honorable Linda Lopez United States District Judge [10] 1]