Barnard v. The United States Department of Homeland Security (D.H.S.)

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA — 9 — 10 DAVID BARNARD, Case No.: 20-cv-493-GPC(MDD) 11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. REQUEST FOR APPOINTMENT OF COUNSEL AND GRANTING 13 THE UNITED STATES DEPARTMENT PLAINTIFF AN EXTENSION OF OF HOMELAND SECURITY (DHS), 14 TIME TO FILE AN AMENDED DHS MANAGEMENT DIRECTORATE COMPLAINT 15 (DHS-MGMT), FEDERAL PROTECTIVE SERVICES (FPS) P. 16 [Dkt. No. 10.] YOUNG (ID NO. 1074), and DOES 1 17 through 5, all in their individual capacity, inclusive; in the same incident; THE — 18 — UNITED STATES CUSTOMS AND 19 BORDER PROTETION, and DOES 6 through 10, all in their individual capacity, — 20 — inclusive, — 21 — Defendants. — 22 — — 23 — On March 16, 2020, Plaintiff David Barnard, proceeding pro se, filed a civil rights — 24 — complaint against Defendant P. Young (ID No. 1074), a Protective Security Officer — 25 — (“PSO”), U.S. Department of Homeland Security, DHS Management Directorate, — 26 — General Services Administration, (“GSA”), Federal Protective Services and U.S. — 27 — Department of Homeland Security Customs and Border Protection (“CBP”) pursuant to — 28 — 42 U.S.C. § 1983 for violating his civil rights based on his unlawful detention, unlawful 1 seizure of his vehicle and an unlawful arrest during a stop at the San Ysidro Port of Entry 2 on March 8, 2017. (Dkt. No. 1, Compl. at 3.) On April 6, 2020, the Court granted 3 Plaintiff’s motion to proceed in forma pauperis but sua sponte dismissed the Complaint 4 for failure to state a claim and granted him leave to file an amended complaint on or 5 before May 1, 2010. (Dkt. No. 3.) On May 4, 2020, the Court granted Plaintiff’s timely 6 request for extension of time to file an amended complaint due to his medical condition. 7 (Dkt. No. 6.) On August 5, 2020, the Court granted Plaintiff’s motion for extension of 8 time to file an amended complaint on or before November 1, 2020. (Dkt. No. 8.) On 9 November 2, 2020, instead of filing an amended complaint, Plaintiff filed a motion for 10 appointment of counsel. (Dkt. No. 10.) 11 Plaintiff contends he does not have the ability to obtain counsel because he (1) 12 cannot pay for the cost of an attorney, (2) the side effects of his medication prohibit him 13 from effectively seeking representation, and (3) he does not have access to the internet to 14 conduct legal research. (Id.) 15 Legal Standard 16 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. 17 Rosolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation 18 omitted). Nevertheless, under 28 U.S.C. § 1915 (e)(1), district courts are granted 19 discretion to appoint legal representation for “any person unable to afford counsel.” See — 20 — 28 U.S.C. § 1915 (e)(1); see also Terrel v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 21 A civil plaintiff who seeks appointment of counsel must make a reasonably diligent effort 22 to obtain counsel before a court may exercise its discretion under § 1915(e)(1). Bailey v. 23 Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993). 24 In addition to the threshold requirements, court appointment of counsel pursuant to — 25 — 28 U.S.C. § 1915 (e)(1) requires a finding of “exceptional circumstances.” Terrel, 935 26 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328,1331 (9th Cir. 1986)). 27 Determining whether “exceptional circumstances” exist requires a court to evaluate the 28 petitioner’s (1) likelihood of success on the merits, and (2) ability to articulate his claims 1 pro se. Id. “Neither of these issues is dispositive and both must be viewed together 2 before reaching a decision.” Id. 3 Discussion 4 Upon the examination of the threshold requirements for appointment of counsel, 5 Plaintiff has established his indigence by successfully obtaining IFP status. Plaintiff has 6 also made a reasonably diligent effort to obtain counsel. Plaintiff contacted three law 7 firms in Los Angeles where he spoke to legal assistants via telephone. (Dkt. No. 10 at 28 4.) He also left voice messages with four different attorneys. (Id.) Finally, Plaintiff 9 spoke to an attorney in Newport Beach. (Id.) After meeting the threshold requirements, 10 the Court must now determine whether Plaintiff has shown “exceptional circumstances” 11 for the Court to exercise its discretion to appoint counsel. Exceptional circumstances 12 may be established by examining Plaintiff’s likelihood of success on the merits, and his 13 ability to articulate claims pro se. 14 A. Likelihood of Success on the Merits 15 “A plaintiff that provides no evidence of his likelihood for success at trial fails to 16 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 17 14cv2911-BEN-NLS, 2016 WL 1399230 , at *1 (S.D. Cal. Apr. 8, 2016) (citing Bailey v. 18 Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1983). Here, this Court dismissed Plaintiff’s 19 complaint in its entirety and granted him leave to amend. (Dkt. No. 3.) Notwithstanding 20 Plaintiff’s assertions in the dismissed complaint, the court does not have enough 21 information to determine Plaintiff’s likelihood of success on the merits. In other words, 22 “at this early stage of the case, the Court cannot find that Plaintiff is likely to succeed on 23 the merits.” Raya v. Barka, No. 3:19-CV-2295-WQH-AHG, 2020 WL 5877848 , at *2 24 (S.D. Cal. Oct. 2, 2020) (other than allegations in the dismissed complaint and a note 25 from the Employee Benefit Security Administration, there is little before the court to 26 assess the merits of the plaintiff’s case); see Thomas v. Richard J. Donovan Corr. 27 Facility Warden, No. 19cv2181-JAH-RBB, 2020 WL 364228 , at *2 (S.D. Cal. Jan 22, 28 2020) (court declined to exercise its discretion and appoint counsel because plaintiff’s 1 complaint was dismissed, and “even assuming he is able to amend, it is simply too soon 2 to tell whether he will be likely to succeed on the merits of any potential [] claim.”). 3 Plaintiff has failed to demonstrate the first factor to support his motion. 4 B. Ability to Articulate Claims Pro Se 5 In regard to the second factor, Plaintiff offers several reasons as to why he would 6 be unable to articulate his claims pro se, including: the side effects of his medication, 7 hackers blocking him from conducting legal research, and lack of internet due to the 8 ongoing pandemic and café closures. (Dkt. No. 10 at 5-6). Even taking these barriers 9 into account, Plaintiff’s contentions do not adequately demonstrate an inability to 10 represent himself beyond the routine difficulties encountered by other plaintiffs 11 proceeding pro se. 12 First, Plaintiff contends that he is enrolled in special assistance for inability to 13 work due to his mental health conditions including depression, Post Traumatic Stress 14 Disorder, and anxiety. (Id. at 5.) Plaintiff provided in his prior pleadings that because of 15 these mental health conditions, he is consuming medication that has negative side effects, 16 prohibiting him from focusing. (Dkt. No. 7 at 2.) Although mental impairments may 17 warrant appointment of counsel in some circumstances, those impairments are limited to 18 an “incapacitating mental disability,” and “a plaintiff making that argument must present 19 substantial evidence of incompetence.” Meeks v. Nunez, No. 13CV973-GPC (BGS), — 20 — 2017 WL 476425 , at *3 (S.D. Cal. Feb. 6, 2017); see Allen v. Calderon, 408 F.3d 1150 , 21 1153 (9th Cir. 2005) (a district court must hold a competency hearing “when substantial 22 evidence of incompetence is presented.”). Here, Plaintiff has not demonstrated that he 23 has an incapacitating mental disability to warrant appointment of counsel. 24 Second, Plaintiff explains that he does not have access to legal resources due to the 25 ongoing pandemic. (Dkt. No. 10 at 5-6.) However, courts in this district have “declined 26 to find that the COVID-19 pandemic establishes exceptional circumstances.” Raya v. 27 Barka, No. 3:19-CV-2295-WQH-AHG, 2020 WL 5877848 , at *2 (S.D. Cal. Oct. 2, 28 2020); see Moore v. Lankford, No. 19cv2406-DMS-BLM, 2020 WL 5363306 , at *4 (S.D. 1 Cal. Sept. 8, 2020) (“Plaintiff’s argument regarding library access due to COVID-19 also 2 fails to establish an exceptional circumstance.”). 3 Third, Plaintiff contends that his computers and cell phones have been hacked, 4 resulting in him being unable to communicate via the internet. (Dkt. No. 10 at 6.) Again, 5 Plaintiff’s claims about his restricted computer access at home does not constitute 6 exceptional circumstances beyond those experienced by other pro se plaintiffs. 7 Therefore, Plaintiff’s assertions do not justify appointment of counsel. 8 C. Extension of Time 9 Nevertheless, in light of Plaintiff’s difficulties in acquiring counsel or proceeding 10 pro se, the Court grants Plaintiff a 90-day extension of time until April 15, 2021 to file 11 an amended complaint. Plaintiff’s amended complaint must be complete by itself 12 without reference to his original pleading. Defendants not named and any claim not re13 alleged in his Amended Complaint will be considered waived. See Hal Roach Studios, 14 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 15 pleading supersedes the original.”). 16 Moreover, if Plaintiff fails to file an amended complaint within the time provided, 17 the Court will enter a final Order dismissing this civil action based both on Plaintiff’s 18 failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 19 1915(e)(2)(B) and 1915A(b), and his failure to prosecute in compliance with a court 20 order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 21 (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district 22 court may convert the dismissal of the complaint into dismissal of the entire action.”). 23 Conclusion 24 Based on the above, the Court DENIES Plaintiff’s request for appointment of 25 counsel, and GRANTS Plaintiff an extension of time to file an amended complaint. 26 / / / 27 / / / 28 / / / — 1 — 2 || Plaintiff shall file an amended complaint on or before April 15, 2021. 3 IT IS SO ORDERED. 4 || Dated: January 15, 2021 Casto 0h 5 Hon. Gonzalo P. Curiel 6 United States District Judge — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —