1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELOY MASCORRO, Case No. 21-cv-01427-BAS-LL
12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S 14 THE CITY OF SAN DIEGO, et al., MOTION TO PROCEED IN FORMA 15 Defendants. PAUPERIS (ECF No. 2);
16 (2) DENYING PLAINTIFF’S 17 MOTION TO APPOINT COUNSEL (ECF No. 3); AND 18
19 (3) GRANTING IN PART AND 20 DENYING IN PART PLAINTIFF’S MOTION TO ACCESS COURT AND 21 COURT SYSTEMS (ECF No. 6) 22
23 24 25 I. BACKGROUND 26 On August 10, 2021, Plaintiff Eloy Mascorro, proceeding pro se, filed the present 27 action against Defendants the City of San Diego, Park Ranger John Doe, the San Diego 28 Police Department (“SDPD”) Officers 1–4, the San Diego Fire Department (“SDFD”), and 1 E.M.T.s 1–3. Mascorro alleges that he was sitting on a bench in Balboa Park when a park 2 ranger approached him and told him to leave. (Compl. at 2, ECF No. 1.) Two SDPD 3 officers subsequently approached Mascorro and ordered him to leave. (Id.) Mascorro did 4 not believe that he was in violation of any laws or park rules. (Id.) The SDPD officers 5 eventually arrested Mascorro for trespassing. (Id.) At that time, Mascorro requested 6 medical assistance, and the SDFD arrived on the scene. (Id.) The SDFD personnel did not 7 offer Mascorro with any care. (Id.) The SDPD officers placed Mascorro in a hot car for 8 25 to 40 minutes before transporting him to the SDPD headquarters and then to jail. (Id.) 9 Upon release from jail, Mascorro went to the hospital and found out that he had a broken 10 arm. (Id.) 11 Concurrent with the filing of the present action, Mascorro filed a motion for leave 12 to proceed in forma pauperis (“IFP”) (ECF No. 2) and a motion to appoint counsel (ECF 13 No. 3). On October 5, 2021, Mascorro filed a second civil rights action against the City of 14 San Diego, the SDPD, and SDPD officers, alleging that he was unlawfully detained, 15 searched, and arrested by the SDPD officers on or around October 6, 2020. Mascorro v. 16 The City of San Diego, et al., 21-cv-01725-BAS-MDD. On October 18, 2021, the Court 17 entered an Order to Show Cause (“OSC”) on why the two actions should not be 18 consolidated, given the similarity in allegations and the parties involved. (OSC, ECF 19 No. 5.) 20 Mascorro responded to the OSC. (ECF No. 6.) In the same document, Mascorro 21 moves for unimpeded access to enter the court building to “access the Court Clerk in 22 person.” (Id. at 2.) Mascorro also seeks the Court’s leave to effect service on opposing 23 counsel by email, file court documents by email, and obtain access to the PACER system 24 free of charge. (Id. at 2.) Mascorro also moves for reconsideration of the Court’s denial 25 of counsel (id. at 1), which the Court construes as a supplemental motion to appoint 26 counsel. 27 The Court finds Mascorro’s motions suitable for determination on the papers 28 submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 1 II. MASCORRO’S RESPONSE TO THE OSC 2 Under Federal Rule of Civil Procedure 42(a), the Court may consolidate actions “if 3 actions before the court involve a common question of law or fact.” Mascorro’s response 4 to the Court’s OSC clarifies that although his two civil rights actions name the City of San 5 Diego and the SDPD as Defendants, the underlying incidents are different in time, involve 6 different individuals, and implicate separate legal issues. (ECF No. 6 at 2.) Given this 7 clarification, the Court will keep the two cases as separate actions. 8 9 III. MOTION TO PROCEED IFP 10 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 11 required fees or security to commence a legal action may petition the court to proceed 12 without making such payment. The determination of indigency falls within the district 13 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d 14 on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the 15 reviewing court to exercise its sound discretion in determining whether the affiant has 16 satisfied the statute’s requirement of indigency”). It is well-settled that a party need not be 17 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 18 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of 19 poverty] is sufficient which states that one cannot because of his poverty pay or give 20 security for costs . . . and still be able to provide himself and dependents with the necessities 21 of life.” Id. at 339. At the same time, however, “the same even-handed care must be 22 employed to assure that federal funds are not squandered to underwrite, at public expense 23 . . . the remonstrances of a suitor who is financially able, in whole or in material part, to 24 pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 25 District courts, therefore, tend to reject IFP applications where the applicant can pay 26 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 27 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that a district court did not 28 abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 1 monthly salary and who received $110 per month from family), vacated in part on other 2 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma pauperis 3 status may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of 4 Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 5 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. 6 Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 7 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 8 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 9 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 10 Having read and considered Mascorro’s application, the Court finds that Mascorro 11 meets the requirements for IFP status under 28 U.S.C. § 1915. Mascorro is unemployed, 12 owns $80 in PayPal debit card, and does not have any money in a bank account. (IFP Mot. 13 ¶¶ 2, 4, ECF No. 2.) Mascorro receives $234 in public assistance and $80 in gifts every 14 month but spends most of the monthly income to buy food and pay for laundry. (Id. ¶¶ 1, 15 8.) Further, Mascorro does not own any real estate, automobile, or any other significant 16 assets. (Id. ¶ 5.) Under these circumstances, the Court finds that requiring Mascorro to 17 pay the court filing fees would impair his or her ability to obtain the necessities of life. See 18 Adkins, 335 U.S. at 339. 19 In light of the foregoing, the Court GRANTS Mascorro’s application for leave to 20 proceed IFP. (ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELOY MASCORRO, Case No. 21-cv-01427-BAS-LL
12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S 14 THE CITY OF SAN DIEGO, et al., MOTION TO PROCEED IN FORMA 15 Defendants. PAUPERIS (ECF No. 2);
16 (2) DENYING PLAINTIFF’S 17 MOTION TO APPOINT COUNSEL (ECF No. 3); AND 18
19 (3) GRANTING IN PART AND 20 DENYING IN PART PLAINTIFF’S MOTION TO ACCESS COURT AND 21 COURT SYSTEMS (ECF No. 6) 22
23 24 25 I. BACKGROUND 26 On August 10, 2021, Plaintiff Eloy Mascorro, proceeding pro se, filed the present 27 action against Defendants the City of San Diego, Park Ranger John Doe, the San Diego 28 Police Department (“SDPD”) Officers 1–4, the San Diego Fire Department (“SDFD”), and 1 E.M.T.s 1–3. Mascorro alleges that he was sitting on a bench in Balboa Park when a park 2 ranger approached him and told him to leave. (Compl. at 2, ECF No. 1.) Two SDPD 3 officers subsequently approached Mascorro and ordered him to leave. (Id.) Mascorro did 4 not believe that he was in violation of any laws or park rules. (Id.) The SDPD officers 5 eventually arrested Mascorro for trespassing. (Id.) At that time, Mascorro requested 6 medical assistance, and the SDFD arrived on the scene. (Id.) The SDFD personnel did not 7 offer Mascorro with any care. (Id.) The SDPD officers placed Mascorro in a hot car for 8 25 to 40 minutes before transporting him to the SDPD headquarters and then to jail. (Id.) 9 Upon release from jail, Mascorro went to the hospital and found out that he had a broken 10 arm. (Id.) 11 Concurrent with the filing of the present action, Mascorro filed a motion for leave 12 to proceed in forma pauperis (“IFP”) (ECF No. 2) and a motion to appoint counsel (ECF 13 No. 3). On October 5, 2021, Mascorro filed a second civil rights action against the City of 14 San Diego, the SDPD, and SDPD officers, alleging that he was unlawfully detained, 15 searched, and arrested by the SDPD officers on or around October 6, 2020. Mascorro v. 16 The City of San Diego, et al., 21-cv-01725-BAS-MDD. On October 18, 2021, the Court 17 entered an Order to Show Cause (“OSC”) on why the two actions should not be 18 consolidated, given the similarity in allegations and the parties involved. (OSC, ECF 19 No. 5.) 20 Mascorro responded to the OSC. (ECF No. 6.) In the same document, Mascorro 21 moves for unimpeded access to enter the court building to “access the Court Clerk in 22 person.” (Id. at 2.) Mascorro also seeks the Court’s leave to effect service on opposing 23 counsel by email, file court documents by email, and obtain access to the PACER system 24 free of charge. (Id. at 2.) Mascorro also moves for reconsideration of the Court’s denial 25 of counsel (id. at 1), which the Court construes as a supplemental motion to appoint 26 counsel. 27 The Court finds Mascorro’s motions suitable for determination on the papers 28 submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 1 II. MASCORRO’S RESPONSE TO THE OSC 2 Under Federal Rule of Civil Procedure 42(a), the Court may consolidate actions “if 3 actions before the court involve a common question of law or fact.” Mascorro’s response 4 to the Court’s OSC clarifies that although his two civil rights actions name the City of San 5 Diego and the SDPD as Defendants, the underlying incidents are different in time, involve 6 different individuals, and implicate separate legal issues. (ECF No. 6 at 2.) Given this 7 clarification, the Court will keep the two cases as separate actions. 8 9 III. MOTION TO PROCEED IFP 10 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 11 required fees or security to commence a legal action may petition the court to proceed 12 without making such payment. The determination of indigency falls within the district 13 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d 14 on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 typically requires the 15 reviewing court to exercise its sound discretion in determining whether the affiant has 16 satisfied the statute’s requirement of indigency”). It is well-settled that a party need not be 17 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 18 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of 19 poverty] is sufficient which states that one cannot because of his poverty pay or give 20 security for costs . . . and still be able to provide himself and dependents with the necessities 21 of life.” Id. at 339. At the same time, however, “the same even-handed care must be 22 employed to assure that federal funds are not squandered to underwrite, at public expense 23 . . . the remonstrances of a suitor who is financially able, in whole or in material part, to 24 pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 25 District courts, therefore, tend to reject IFP applications where the applicant can pay 26 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 27 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that a district court did not 28 abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 1 monthly salary and who received $110 per month from family), vacated in part on other 2 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma pauperis 3 status may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of 4 Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 5 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. 6 Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 7 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 8 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 9 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 10 Having read and considered Mascorro’s application, the Court finds that Mascorro 11 meets the requirements for IFP status under 28 U.S.C. § 1915. Mascorro is unemployed, 12 owns $80 in PayPal debit card, and does not have any money in a bank account. (IFP Mot. 13 ¶¶ 2, 4, ECF No. 2.) Mascorro receives $234 in public assistance and $80 in gifts every 14 month but spends most of the monthly income to buy food and pay for laundry. (Id. ¶¶ 1, 15 8.) Further, Mascorro does not own any real estate, automobile, or any other significant 16 assets. (Id. ¶ 5.) Under these circumstances, the Court finds that requiring Mascorro to 17 pay the court filing fees would impair his or her ability to obtain the necessities of life. See 18 Adkins, 335 U.S. at 339. 19 In light of the foregoing, the Court GRANTS Mascorro’s application for leave to 20 proceed IFP. (ECF No. 2.) However, if it appears at any time in the future that Mascorro’s 21 financial picture has improved for any reason, the Court will direct Mascorro to pay the 22 filing fee to the Clerk of the Court. This includes any recovery Mascorro may realize from 23 this suit or others and any assistance Mascorro may receive from family or the government. 24 25 IV. MOTION TO APPOINT COUNSEL 26 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 27 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, federal courts do not have the 28 authority “to make coercive appointments of counsel.” Mallard v. U.S. Dist. Ct., 490 U.S. 1 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 2 (9th Cir. 1995). 3 Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1) to 4 “request” that an attorney represent indigent civil litigants upon a showing of “exceptional 5 circumstances.” See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th 6 Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking assistance 7 requires at least an evaluation of the likelihood of the plaintiff’s success on the merits and 8 an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of 9 the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 10 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 11 Cir. 1991). 12 Here, while the Court does not discount Mascorro’s hardships, including his 13 homelessness, lack of financial resources, and lack of government-issued identification, 14 Mascorro’s court filings establish that he is capable of legibly articulating the facts and 15 circumstances relevant to the claims raised in the Complaint. The Court thus declines to 16 exercise its limited discretion to request that an attorney represent him pro bono pursuant 17 to 28 U.S.C. § 1915(e)(1). See Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 25 (1981); 18 Agyeman, 390 F.3d at 1103. 19 20 V. MOTION TO ENTER COURT AND ACCESS ELECTRONIC SYSTEMS 21 A. Accessing Court Premises 22 Mascorro requests the Court’s permission to access the courthouse without having 23 to present a government-issued identification, so that he can save the time and cost of filing 24 motions. The public interest in securing the courthouse by requiring all entrants present 25 government-issued identification outweighs Mascorro’s interest to save time or costs to 26 litigate his case. Further, the Court will grant Mascorro leave to file documents 27 electronically, which alleviates Mascorro’s hardship from filing documents by mail. Thus, 28 1 the Court DENIES Mascorro’s request for permission to enter the court premises without 2 presenting a government-issued identification. 3 4 B. Serving and Filing Documents by E-mail 5 Mascorro seeks the Court’s leave to file documents and receive notifications of court 6 filings by email. The Court construes this request as a request for permission to use the 7 Court’s CM/ECF filing system to electronically file documents and receive electronic 8 notice of case-related transmissions. Mascorro has sufficiently stated that he has access to 9 the necessary equipment and software capabilities to electronically file documents. The 10 Court thus GRANTS Mascorro’s motion to file documents and receive notifications using 11 the Court’s CM/ECF system in accordance with ECF Administrative Policies and 12 Procedures.1 On or before December 22, 2021, Mascorro must register as a CM/ECF 13 user with the Clerk’s Office. 14 Mascorro also asks for the Court’s permission to serve documents to opposing 15 counsel by email. The Court DENIES this request WITHOUT PREJUDICE. The Court 16 will reconsider this request once opposing counsel files an appearance. 17 18 C. Free Access to the PACER System 19 Mascorro also moves for the Court’s leave to gain free access to PACER, which the 20 Court will grant. The Court has already granted Plaintiff’s application to proceed IFP and 21 finds that Mascorro falls within the class of users eligible for a fee exemption listed in the 22 Electronic Public Access fee schedule adopted by the Judicial Conference of the United 23 States. Mascorro has demonstrated that a fee exemption is necessary to avoid unreasonable 24 burdens in litigating this case. The Court therefore GRANTS Mascorro an exemption 25 from fees for PACER usage. This exemption covers only fees associated with filing and 26 27
28 1 || accessing the electronic documents in this action. Mascorro shall not be exempt from the 2 || payment of fees incurred in connection with other uses of the PACER system.” 3 4 IT IS SO ORDERED. 5 A , 6 || DATED: December 8, 2021 Lin A (Bashan. 6 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 || ———___ 28 2 Mascorro is advised to review https://pacer.uscourts.gov/my-account-billing/billing/options- access-records-if-you-cannot-afford-pacer-fees regarding access to the PACER system.