Limpin v. Newsom

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 UNITED STATES ex rel. MELCHOR Case No.: 23-cv-0399-DMS-AGS KARL T. LIMPIN, [12] ORDER (1) DENYING PLAINTIFF’S Plaintiff, 13 MOTION TO APPOINT COUNSEL; v. AND (2) GRANTING THE UNITED [14] STATES’ MOTION TO DISMISS GAVIN NEWSOM, et al., [15] Defendants. [17] 18 Presently before the Court is Plaintiff Melchor Karl T. Limpin’s First Amended 19 Complaint, (ECF No. 7), Request for Judicial Notice, (ECF No. 8), Motion for Pro Bono 20 Counsel, (ECF No. 11), United States’ Notice of Election to Decline to Intervene, (ECF 21 No. 16), Plaintiff’s Motion for Compulsory Joinder (ECF No. 17), United States’ Motion 22 to Dismiss (ECF No. 24), Plaintiff’s Motion for Order to Effect Service of Process by the 23 U.S. Marshal (ECF No. 25), and Plaintiff’s Motion to Disqualify Assistant U.S. Attorney 24 (ECF No. 27.) 25 I. 26 BACKGROUND 27 Plaintiff Relator Melchor Karl T. Limpin, proceeding pro se, brings this qui tam 28 action against California Governor Gavin Newsom, California State Senate President pro 1 tempore Toni G. Atkins, Assembly Speaker Anthony Rendon, various Doe individual 2 defendants and their respective employers for colluding to violate the False Claims Act 3 (“FCA”) by permitting “unauthorized foreigners” to obtain COVID-19 relief, file tax 4 returns, and receive Medicaid benefits. Plaintiff alleges these elected officials, named as 5 Defendants in their individual capacities, conspired to cause undocumented individuals to 6 present claims to Medi-Cal, the State of California’s Medicaid program, which were false 7 because federal Medicaid program prohibits reimbursement for medical assistance to 8 undocumented persons. Plaintiff bases his claims on the enactment of California Senate 9 Bill (“SB-88”) and Senate Bill 139 (“SB-139”). He claims the millions of undocumented 10 individuals in the state of California and their respective employers have concealed their 11 immigration status by fraudulently claiming Medicaid health care expenditures, thereby 12 defrauding the government. [13] II. 14 MOTION TO APPOINT COUNSEL 15 Plaintiff requests the Court appoint pro bono counsel pursuant to 28 U.S.C. § 16 1915(e)(1). (ECF No. 11.) Section 1915(e)(1) states a Plaintiff “may request an attorney 17 to represent any person unable to afford counsel.” Appointment of counsel in civil cases, 18 “as is the privilege of proceeding in forma pauperis, [is] a matter within the discretion of 19 the district court. It is a privilege and not a right.” U.S. ex rel. Gardner v. Madden, 352 20 F.2d 792, 793 (9th Cir. 1965). “[A]ppointment of counsel should be allowed only in 21 exceptional cases.” Id. at 794 . When determining whether “exceptional circumstances” 22 exist, a court must consider “the likelihood of success on the merits as well as the ability 23 of the petitioner to articulate his claims pro se in light of the complexity of the legal issues 24 involved.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). These factors must be 25 viewed together, neither is dispositive. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 26 Cir. 1986). 27 The factual bases for Plaintiff’s complaint are familiar to this Court. In Limpin v. 28 California, No. 23-cv-37, 2023 WL 3213862 (S.D. Cal. May 2, 2023), Plaintiff filed a 1 lawsuit against most of the same defendants using the same factual bases as he did here. 2 That case was dismissed with prejudice, without leave to amend. Id. at *5 . There, Plaintiff 3 sued forty-two defendants, including the State of California and various elected officials in 4 their individual capacities alleging violations of the Equal Protection Clause of the 5 Fourteenth Amendment, Racketeer Influenced and Corrupt Organizations (RICO) under 6 18 U.S.C. §§ 1661–64, civil rights violations under 42 U.S.C. § 1985 and conspiracy to 7 interfere with civil rights under 42 U.S.C. § 1985 (3). Id. at *2 . “Plaintiff’s causes of action 8 derive[d] from the implementation of California Senate Bill (“SB-88”) and Senate Bill 139 9 (“SB-139”).” Id. 10 The same is true here. Just like in Limpin v. California, Plaintiff bases his causes of 11 action on SB-88 and SB-139. Unlike that case, though, here he labels his causes of action 12 as falling under the FCA. Labels aside, these allegations all stem from the same alleged 13 RICO conspiracy the court dismissed in Limpin v. California. Plaintiff is barred from 14 bringing this action because the challenged conduct is of elected officials acting in their 15 official capacities to enact SB-88 and SB-139, and such conduct is immune under the 16 Eleventh Amendment. Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116 , 1121 17 (9th Cir. 2007). 18 As to the allegations against Doe individual defendants and their respective 19 employers, this Court gave Plaintiff leave to amend once before. (See ECF No. 6.) Plaintiff 20 failed to do so. In his motion for counsel, Plaintiff notes he will require the assistance of 21 counsel and an investigator to determine the “Unknown Names” of defendants in this 22 action. (Id. at 7.) “Although ‘a pro se litigant will seldom be in a position to investigate 23 easily the facts necessary to support the case,’ the need for discovery does not render the 24 legal complexity of a case extraordinary.” Zamaro v. Moonga, 656 Fed. App'x 297 , 299 25 (9th Cir. 2016) (quoting Wilborn, 789 F.2d at 1331 ). If the Court were to grant appointment 26 of counsel to Plaintiff here, “pro se civil litigants would be entitled to counsel in all 27 circumstances, not only exceptional ones.” Siglar v. Hopkins, 822 Fed. App’x 610, 612 28 (9th Cir. 2020). 1 The history of this case demonstrates that Plaintiff can articulate his claims pro se, 2 despite any legal complexities.1 Truly the only complexity of issues involved stem from 3 Plaintiff’s attempts to apply the FCA to facts that do not give rise to a claim. In his filings, 4 Plaintiff makes legal arguments, cites to requisite authority, and recognizes the deficiencies 5 with his pleadings. Plaintiff brought this motion for pro bono counsel because he learned, 6 through the United States, that a pro se Plaintiff cannot prosecute a qui tam action if the 7 United States declines to intervene. (ECF No. 11 at 1.) But a “[r]elator’s inability to bring 8 this action pro se does not by itself justify appointment of counsel in this case.” U.S. ex. 9 rel. Hadi v. Pinal Cnty. Comm. College Dist. Gov. Bd., No. CV-13-00007, 2013 WL 10 4834020, at *1 (D. Ariz. Sept. 10, 2013). After careful consideration, the Court finds there 11 are no exceptional circumstances present. Accordingly, Plaintiff’s motion for pro bono 12 counsel is DENIED. [13] III. 14 DISMISSAL OF ACTION 15 The FCA permits private citizens to bring qui tam actions with certain limitations. 16 The United States is the real party in interest in such actions. United States ex rel. 17 Killingsworth v. Northrop Corp., 25 F.3d 715, 720 (9th Cir. 1994). The United States 18 declined to intervene in this action. (ECF No. 16 at 1.) Because the Court has declined 19 Mr. Limpin’s request for appointment of counsel, Mr. Limpin remains a pro se litigant. 20 The government argues that a pro se litigant may not prosecute a qui tam action against the 21 United States. (Government’s Opposition to Defendant’s Motion (“Govt. Opp’n”), ECF 22 No. 24, at 5.) This Court agrees. Non-attorneys may not represent the United States for 23 “qui tam realtors are not prosecuting only their ‘own case’ but also representing the United 24 States and binding it to any adverse judgment the realtors may obtain.” Id. (quoting Stoner [26] 1 This is further demonstrated by Plaintiff’s litigious history. Plaintiff is no stranger to the federal court 27 system. He has appeared, pro se, in a variety of civil cases in this District, the Ninth Circuit, and the United States Supreme Court. [28] 1 v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116 , 1127–28 (9th Cir. 2007)). Plaintiff, 2 appearing pro se, cannot prosecute this qui tam action against the United States. The Court 3 therefore DISMISSES this action with prejudice as to Plaintiff and without prejudice as to 4 the United States. [5] IV. 6 CONCLUSION 7 For these reasons, the Court HEREBY ORDERS: 8 1. Plaintiff’s Motion for Pro Bono Counsel (ECF No. 11) is DENIED. 9 2. United States’ Motion to Dismiss (ECF No. 24) is GRANTED. 10 3. Plaintiff’s Request for Judicial Notice (ECF No. 8) is DENIED as moot. 11 4. Plaintiff’s Motion for Compulsory Joinder (ECF No. 17) is DENIED as moot. 12 5. Plaintiff’s Motion for Order to Effect Service of Process (ECF No. 25) is 13 DENIED as moot. 14 6. Plaintiff’s Motion to Disqualify Assistant U.S. Attorney (ECF No. 27) is 15 DENIED as moot. 16 IT IS SO ORDERED. 17 Dated: October 24, 2023 ____________________________ 18 Hon. Dana M. Sabraw, Chief Judge United States District Court