Bernstein v. United States Department of Housing & Urban Development

Opinion

1 2 3 6 7 MARY HELEN BERNSTEIN, et al., Case No. 20-cv-02983-WHO

8 Plaintiffs, ORDER ADOPTING MAGISTRATE 9 v. JUDGE'S REPORT AND RECOMMENDATION HOUSING & URBAN DEVELOPMENT, Re: Dkt. Nos. 95, 98, 102 11 et al., Defendants. 12 13 On August 16, 2021, Magistrate Judge Jacqueline Scott Corley issued a Report and 14 Recommendation, recommending the court dismiss this case without leave to amend for failure to 15 state a claim. Dkt. 99. Plaintiff Mary Bernstein filed an objection on August, 21, 2021, contesting 16 the Report and Recommendation on the specific grounds that: (1) “exceptional circumstances” 17 existed warranting the appointment of counsel; (2) judicial immunity did not bar claims brought 18 under the Americans with Disabilities Act (“ADA”); and (3) plaintiffs were not prohibited from 19 bringing an ADA claim against the United States Department of Housing and Urban Development 20 (“HUD”) and the California Department of Fair Employment and Housing (“DFEH”). Obj. to R. 21 & R. [Dkt. 102] 30, 32, 35. 22 Having reviewed the record in this case, I agree with Judge Corley’s Report and 23 Recommendation and adopt it in full. My responses to Bernstein’s objections are as follows: 24 First, Bernstein argues that she and her co-plaintiff, Elizabeth Tigano, should be appointed 25 counsel. See id. at 30. She notes in part that: “Plaintiffs have explained they do not know how to 26 write any different or clearer than they have. Magistrate states plaintiffs do not need counsel but 27 1 then criticizes the writing of claims which plaintiffs do not fully comprehend.”1 Id. Judge Corley 2 denied Bernstein’s first motion for appointment of counsel because the plaintiffs “had not 3 demonstrated a likelihood of success on the merits, nor . . . demonstrated that their failure to do so 4 was the result of either their difficulty articulating claims as litigants unrepresented by an attorney 5 or the complexity of the legal issues involved.” R. & R. [Dkt. 99] 11. Judge Corley denied the 6 second motion for the same reasons, additionally finding that the plaintiffs’ “numerous filings 7 demonstrate that they [are] capable of conducting legal research, presenting claims and arguments 8 in writing, and understanding legal issues.” Id. 9 The court “may under ‘exceptional circumstances’ appoint counsel for indigent civil 10 litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 11 2009). When determining whether such circumstances exist, the court must “evaluate the 12 likelihood of success on the merits as well as the ability of the petitioner to articulate his claims 13 pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 14 954 (9th Cir. 1983). Here, the primary issue is that Bernstein and Tigano have failed to state a 15 claim for which relief may be granted. I too am sympathetic to the plaintiffs’ personal 16 circumstances, along with the inherent challenges of navigating the legal system without a lawyer. 17 The plaintiffs, however, have had ample time, direction, and opportunity to address the issues in 18 their complaint. Judge Corley gave them three chances to amend their complaint, along with 19 multiple filing extensions.2 See Dkt. 37, 77, 98. Her screening orders identified specific 20 shortcomings to address. See, e.g., Screening Order No. 2 [Dkt. 81] 9. She also recommended 21 that the plaintiffs consult the Legal Help Center for free assistance, which they did. Id.; Obj. to R. 22

23 1 This comment was included on an annotated screenshot of Judge Corley’s Report and 24 Recommendation, which Bernstein embedded in her objection.

25 2 In her opposition to the Report and Recommendation, Bernstein requests another stay of this case. Id. at 47. The plaintiffs have already received multiple filing extensions totaling six months. 26 See Order Denying Motion to Stay [Dkt. 84] (detailing various extensions). I agree with Judge Corley’s rationale in denying prior motions to stay: “The Court must manage its docket, ensure 27 expeditious resolution of litigation, and ensure defendants are not prejudiced by lengthy delays.” 1 & R. at 14 (referencing work with two attorneys). The plaintiffs’ claims fail not because of an 2 inability to articulate them. They fail because the plaintiffs have not alleged a cognizable claim 3 for relief under the applicable law. 4 Next, Bernstein alleges that her ADA claim against Alameda County Superior Court 5 judges is not barred by judicial immunity. Obj. to R. & R. at 32-35. Bernstein focuses her 6 objection on the right to counsel, which she argues is a reasonable accommodation that constitutes 7 an administrative act rather than a judicial one. Id. Judge Corley found that Judge Herbert, the 8 judge who denied Bernstein’s request for appointment of counsel, was exercising “normal judicial 9 functions for which he is entitled to judicial immunity.” R. & R. at 9. I agree with Judge Corley. 10 In denying Bernstein’s request, Judge Herbert was effectively ruling on a motion, which the Ninth 11 Circuit has held is a “normal judicial function” for which judges are entitled to absolute immunity. 12 See Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), as amended on denial of reh’g 13 (Oct. 11, 2001). 14 Finally, Bernstein argues that Judge Corley erred by finding that the plaintiffs did not plead 15 a claim against HUD and DFEH under the ADA. Obj. to R. & R. at 35-40. It appears that 16 Bernstein believes the issue was the plaintiffs’ race, conflating two of Judge Corley’s findings. Id. 17 at 35. Judge Corley found that Bernstein and Tigano failed to state a claim under 42 U.S.C. § 18 1981 because plaintiffs pleading § 1981 claims must be members of racial minorities, and 19 Bernstein and Tigano have described themselves as white women. R. & R. at 5-6. Their race, 20 however, did not factor into the recommendation regarding the ADA claim against HUD and 21 DFEH. Id. at 10. Rather, Judge Corley found that the plaintiffs’ ADA claim failed because 22 although they allege that HUD and DEFH “ignored their complaints and did not assist them in 23 stopping the harassment at their housing complexes . . . they do not allege that these actions were 24 taken by HUD or DFEH employees because of their disabilities.” Id. (emphasis in original). 25 Judge Corley notified the plaintiffs of this issue in her second screening order. Dkt. 81 at 26 9. It appears, however, that Bernstein repeated the same arguments in her third amended 27 complaint, with no additional allegations that HUD or DFEH acted “because of” plaintiffs’ 1 “Tp]laintiffs do not know how to articulate any better.”? Obj. to R. & R. at 43. Again, the 2 || plaintiffs had multiple opportunities to add any allegations to the complaint that would sufficiently 3 plead a claim under the ADA. Because they did not do so, I agree with Judge Corley and find that 4 || the plaintiffs have failed to state a claim for which relief can be granted. 5 Accordingly, this action is DISMISSED without leave to amend. 7 Dated: October 1, 2021 . 8 ® LLIAM H. ORRICK 9 United States District Judge 10 11 a 12

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4 18 19 20 21 22 23 24 25 26 27 28 3 This comment was included on another annotated screenshot of Magistrate Judge Corley’s Report and Recommendation, which Bernstein embedded in her objection.