Price v. Trujillo

Background

Immanuel Christian Price, a state prisoner proceeding without a lawyer, filed a civil-rights complaint under 42 U.S.C. § 1983 seeking damages for alleged civil-rights violations. He also moved to proceed without paying the filing fee and moved twice for appointment of counsel.

Filing-fee issue

The Prison Litigation Reform Act bars a prisoner from proceeding without paying the filing fee if the prisoner has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was under imminent danger of serious physical injury. The court explained that the prisoner must receive notice and an opportunity to respond before the court applies this rule.

The court identified four earlier Price actions or appeals that it believed might qualify as dismissals counted under this rule: two cases dismissed for failure to state a claim, one appeal dismissed as frivolous, and one complaint dismissed under the rule recognized in Heck. The court also noted that the Ninth Circuit had twice found that Price had at least three qualifying prior dismissals. The court determined that Price did not appear to be under imminent danger of serious physical injury when he filed this case.

The court therefore ordered Price to show cause in writing within 28 days why his request to proceed without paying the filing fee should not be denied and why the action should not be dismissed under 28 U.S.C. § 1915(g). The court stated that Price could avoid dismissal by paying the $405 filing fee. It did not dismiss the action in this order.

Appointment of counsel

The court explained that civil litigants generally have no constitutional right to appointed counsel. A court may request volunteer counsel for an indigent litigant only in exceptional circumstances, considering both the likelihood of success and the litigant’s ability to present the claims in light of the legal issues.

Because the case was at an early stage, the court said it was premature to assess Price’s likelihood of success. The court also noted that Price had been ordered to show cause concerning the filing-fee rule and possible dismissal.

Disposition

The court denied Price’s motions for appointment of counsel without prejudice. It ordered Price to respond within 28 days concerning the filing-fee request and possible dismissal. The court warned that failing to respond on time or pay the full filing fee within that period would result in dismissal without further notice. The order terminated Docket Nos. 9 and 11.