ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Introduction

Pending before the court is defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 32). Also pending are plaintiff's motion for appointment of counsel, motion for extension of time to file third amended complaint, proposed third amended complaint and proposed supplemental third amended complaint. (ECF Nos. 34, 35, 36, 39.)

Motion to Dismiss

Plaintiff did not oppose defendants' motion to dismiss. Instead, plaintiff filed a proposed third amended complaint. (ECF No. 36.) Although plaintiff did not file an opposition to defendants' motion to dismiss, the undersigned recommends that this motion be denied for the reasons stated herein.

Legal Standard for Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

Discussion

This action is proceeding on the second amended complaint filed October 20, 2014, as to plaintiff's claim challenging defendants' calculation of filing fee payments. (ECF No. 23.) On December 30, 2014, the undersigned recommended that plaintiff's motion to amend with respect to this claim be granted. (ECF No. 29.) The undersigned recommended that plaintiff's motion to amend with respect to the claim alleging improper withdrawal of money to pay restitution be denied. (Id.) On February 6, 2015, the Honorable Garland E. Burrell adopted these findings and recommendations. (ECF No. 31.)

Plaintiff alleges that defendants Duffy and Payan did not properly calculate his filing fees payments owed in two appeals filed in 2:06-cv-886. (ECF No. 23 at 8.) Plaintiff alleges that he was charged "two 40% court fee deductions" for the fees owed in 08-886. (Id.) Plaintiff alleges that, "[p]resently I am being denied any part of my funds due to my court fee debts. I am sure that the PLRA does not require 100% deduction from each deposit until the fees are paid." (Id.) Plaintiff requests injunctive relief "instructing defendants and plaintiff as to how (or wherein citations) the calculations of court fee deductions are to be assessed." (Id. at 10.)

In the December 30, 2014 findings and recommendations, the undersigned observed that plaintiff's claim alleging improper calculation of filing fee payments raised a claim over which the courts of appeal were divided. The undersigned quoted from a D.C. Circuit case which discussed this division:

Pinson v. Samuels, 761 F.3d 1, 7 (D.C. Cir. 2014).

In the December 30, 2014 findings and recommendations, the undersigned noted that in Pinson, the D.C. Circuit found that the "per case" approach adopted by the Fifth, Seventh, Eighth and Tenth Circuits was the better understanding of 28 U.S.C. § 1915(b). (Id.) The Ninth Circuit has not ruled on this issue. In the second amended complaint, plaintiff alleges that defendants' calculation of filing fees follows the "per case" approach. Plaintiff suggests that defendants should instead follow the "per prisoner" approach adopted by the Second and Fourth Circuits, i.e., the approach that does not permit a 100% deduction of his trust account for filing fee payments.

Defendants move to dismiss plaintiff's claim challenging the calculation of filing fees on two grounds. First, defendants argue that plaintiff's claim does not allege a violation of a constitutional right. Second, defendants argue that plaintiff's remedy is to file a motion in the case in which the court ordered the filing fees paid.

In the motion to dismiss, defendants argue that in none of the cases cited in the December 30, 2014 findings and recommendations did the court of appeal find a separate constitutional claim concerning calculation of filing fees. Rather, defendants argue that the issue was raised in the initial case in which filing fees were ordered in one of two ways. Defendants state that in several cases, the inmate brought a post-judgment motion challenging the prison's calculation of filing fees: Torres v. O'Quinn, 612 F.3d 237, 252 (4th Cir. 2010); Whitfield v. Scully, 241 F.3d 264, 277 (2d Cir. 2001); Christensen v. Big Horn Cnty. Bd. Comm'rs, 374 Fed.Appx. 821, 822 (10th Cir. 2010). Alternately, the inmate raised the issue of filing fees in an appeal of the district court's decision concerning the underlying claims or in an appeal challenging the constitutionality of the PLRA's imposition of filing fees. Atchison v. Collins, 288 F.3d 177, 180 (5th Cir. 2002); Lefkowitz v. City Grp., 146 F.3d 609, 612 (8th Cir. 1998); Newlin v. Helman, 123 F.3d 429, 436 (7th Cir. 1997), overruled in part on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000); Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000).

Defendants argue that none of the cases cited above stand for the proposition that miscalculation of filing fees constitutes a separate constitutional violation. Defendants argue that to the extent plaintiff wishes to challenge the way authorities are collecting filing fees in 06-886, he must file a motion in that case.

The undersigned first considers defendants' argument that plaintiff should raise his claim challenging the filing fee calculation in the action the fees were imposed. Court records indicate that plaintiff was charged a filing fee in the instant action. (ECF No. 8.) Thus, plaintiff may raise his claim challenging defendants' calculation of filing fees because he is subjected to multiple filing fees by way of the instant action and 06-886. The undersigned further notes that in Battle v. Vail, 2010 WL 3813819 (W.D. Wash. 2010), the plaintiff was allowed to bring a separate civil rights action challenging the Department of Corrections' calculation of filing fees.

Turning to defendants' argument that plaintiff's claim does not implicate a constitutional violation, two of the circuit cases cited in the December 30, 2014 findings and recommendations acknowledged that the "per case" fee collection could violate an inmate's constitutional rights. In Whitfield v. Scully, the Second Circuit observed that the "simultaneous collection of multiple encumbrances could potentially expose 100 percent of a prisoner's income to recoupment . . . Yet, this result arguably could pose a serious constitutional quandary as to whether an unreasonable burden had been placed on the prisoner's right of meaningful access to the courts, especially with respect to the collection of filing fees." 241 F.3d at 276-77. In Atchison v. Collins, the Fifth Circuit acknowledged the constitutional questions raised by the "per case" cap that could result if 100 percent of a prisoner's income was collected to pay fees. 288 F.3d at 181. The Fifth Circuit went on to find that it was "unlikely" that serious constitutional questions were "in play here." (Id.)

Whether the "per case" cap raises constitutional concerns has also been acknowledged by district courts. In Lafauci v. Cunningham, 139 F.Supp.2d 144 (D. Mass. 2001), the district court found that recoupment of 100 percent of a prisoner's monthly income would raise serious constitutional concerns because it would leave a prisoner with "no income for postage, copying, paper, envelopes, writing utensils, etc. — potentially leaving him/her without means of court communication." 139 F.Supp.2d at 147. In LaFauci, the district court cited nine circuits that had specifically addressed the related issue of whether requiring prisoners to pay filing fees violates a prisoner's right to access the courts, each holding that requiring prisoners to pay a filing fee does not deny a prisoner effective access to the courts. Id. at 147 n.2.

In Hendon v. Ramsey, 478 F.Supp.2d 1214 (S.D. Cal. 2007), after concluding that the PLRA mandates the "per case" cap, the district court went on to state that it "must also examine whether requiring plaintiff to pay 20 percent of his monthly income for each action filed would place an unreasonable burden on his constitutional right of meaningful access to the courts." 478 F.Supp.2d at 1219-20.

The cases cited above demonstrate that plaintiff's claim challenging the "per case" approach raises a colorable claim for violation of the right to access the courts. Accordingly, defendants' motion to dismiss on grounds that plaintiff has not raised a constitutional claim should be denied.

In addition to his constitutional claim, plaintiff is arguing that defendants have incorrectly interpreted § 1915(b). Plaintiff argues that the correct interpretation of § 1915(b) mandates a "per prisoner" cap, rather than the "per case" approach currently followed.1 Defendants did not address this issue in the motion to dismiss.

Plaintiff's Proposed Third Amended Complaint and Supplemental Third Amended Complaint

On February 27, 2015, plaintiff filed a motion for an extension of time to file an amended complaint. (ECF No. 35.) In this pleading, plaintiff stated that he would seek to add additional defendants who were the "proper parties" with respect to his claim challenging the calculation of filing fees. (ECF No. 35 at 1.) Plaintiff identified these additional defendants as Assistant Secretary of the California Department of Corrections and Rehabilitation ("CDCR") Office of Victim Rights Shaffer, CDCR Secretary Tilton, CDCR Undersecretary Woodford, Deputy Attorney General Kamburian and Deputy Attorney General Heather Heckler. (Id.)

On March 20, 2015, defendants filed an opposition to plaintiff's motion for extension of time to file a third amended complaint. (ECF No. 38.) Defendants construed the motion for extension of time as a motion for leave to file a third amended complaint. Defendants argued that plaintiff's proposed amendments would be futile because plaintiff had made no allegations that any of the individuals he seeks to add as defendants are personally involved in the removal of money from his trust account to pay his filing fees, nor did he allege facts sufficient to state a claim based on a theory of supervisory liability.

On March 18, 2015, plaintiff filed a proposed third amended complaint. (ECF No. 36.) On March 20, 2015, plaintiff filed a proposed supplemental third amended complaint. (ECF No. 39.) Defendants were not aware of these pleadings when they prepared their opposition filed March 20, 2015. Defendants have not filed a response to these pleadings.

It is difficult to evaluate plaintiff's request to file a third amended complaint for several reasons. First, plaintiff has not filed a motion for leave to amend in support of his proposed third amended complaint. Second, the differences between plaintiff's proposed third amended complaint and proposed supplemental third amended complaint are unclear. Plaintiff did not file a motion in support of his proposed supplemental third amended complaint, as required by Federal Rule of Civil Procedure 15(d). Because plaintiff's request to proceed on his proposed third amended complaints is procedurally defective, plaintiff's request to proceed on these pleadings is denied.2

Motion for Appointment of Counsel

Plaintiff has also filed a motion for the appointment of counsel. (ECF No. 34.)

District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether "exceptional circumstances" exist, the court must consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for appointment of counsel (ECF No. 34) is denied;

2. Plaintiff's motion for an extension of time to file an amended complaint (ECF No. 35) is denied as unnecessary;

3. Plaintiff's request to proceed on the proposed third amended complaint and proposed supplemental third amended complaint is denied; and

IT IS HEREBY RECOMMENDED that defendants' motion to dismiss (ECF No. 32) be denied; defendants be ordered to file a response to plaintiff's second amended complaint within twenty days of the adoption of these findings and recommendations.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).