Coleman v. Fernandez
- Susan Illston
- 3:21-cv-00539
- U.S. District Court · Northern District of California
- 4
In Coleman v. Fernandez, Judge Illston granted more time to address prisoner-filing restrictions, denied a possible counsel request, and did not yet dismiss the case.
Wendell Coleman, the prisoner plaintiff proceeding without a lawyer; the order set conditions for his continued pursuit of claims against Lt. Fernandez and the other defendants but did not decide those claims.
What happened
In Coleman v. Fernandez, the court had ordered Wendell Coleman to explain why his case should not be dismissed because three earlier prisoner cases appeared to count against his eligibility to proceed without paying the filing fee. The court also said he had not shown that he faced an immediate risk of serious physical injury when he filed the complaint.
Coleman asked for another extension and clarification about paying the filing fee, making installment payments from his prison account, or responding to the court’s order. The court granted the second extension and required his response by July 30, 2021. It explained that, unless he paid the full $400 filing fee, he had to respond by showing that one of the earlier dismissals should not count or that he faced the required immediate danger.
The court also denied any request for appointed counsel, if Coleman’s clarification request was meant to seek counsel. Judge Susan Illston did not dismiss the case in this order, but warned that failing to respond properly or pay the full fee by the deadline would lead to denial of fee-waiver status and dismissal under the prisoner-filing rule.
The detailed version
- Coleman v. Fernandez · No. 3:21-cv-00539
- Susan Illston
- June 28, 2021
Background
Wendell Coleman filed this civil action while proceeding as a prisoner and sought permission to proceed without paying the filing fee. On February 11, 2021, the court ordered him to show cause—meaning to explain—why the action should not be dismissed under 28 U.S.C. § 1915(g). That statute generally prevents a prisoner from proceeding without paying the filing fee after three prior cases or appeals were dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner faced imminent danger of serious physical injury when the new action was filed.
The earlier order identified three dismissals that appeared to qualify: Coleman v. Nguyen, No. 18-cv-3468 SI; Coleman v. Napa County Department of Corrections, No. 18-cv-4104 SI; and Coleman v. Alison, No. 19-cv-964 SI. The court had previously reset Coleman’s response deadline to June 18, 2021, but he did not file the required response by that date.
Requests and rulings
Coleman requested a second extension of time. The court granted that request and ordered him to file a written response to the February 11 order by July 30, 2021.
Coleman also asked for clarification about whether he could pay the $400 filing fee in full, make installment payments from his prison trust account, or respond to the § 1915(g) issue. The court explained that, unless he could pay the full filing fee, his alternative was to file a response addressing the issue. The court stated that it could not decide his application to proceed without paying the fee until he responded.
The response must explain either why at least one of the three identified dismissals should not count under § 1915(g), or why Coleman was under imminent danger of serious physical injury when he filed the complaint. The court stated that if Coleman failed to respond by July 30, or failed to properly address the issue, it would deny his application to proceed without paying the fee and dismiss the action under § 1915(g). The court also stated that dismissal under that statute would prevent him from proceeding as a fee-waived prisoner litigant but would not prevent him from pursuing his claims if he paid the full filing fee at the outset.
Request for counsel
To the extent Coleman’s request for clarification sought appointment of counsel, the court denied that request. Under 28 U.S.C. § 1915(e)(1), appointed counsel for an indigent civil litigant requires exceptional circumstances, evaluated by considering the litigant’s ability to present the claims and the likelihood of success. The court found that Coleman had articulated his claims adequately, had represented himself effectively in earlier actions, and appeared to have a low likelihood of success. It therefore found no exceptional circumstances.
Disposition
Judge Susan Illston granted Coleman’s request for a second extension of time, addressed his clarification request, and denied any request for appointed counsel. The order did not itself dismiss the action or decide the underlying civil-rights claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.