1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN SANCHEZ-RIVERA, Case No.: 22-cv-1254-BAS-BGS
12 Plaintiff, ORDER DENYING SECOND 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 UNITED STATES OF AMERICA,
15 [ECF 20] Defendant. 16 17 18 19 Plaintiff’s Amended Complaint alleges he is a detainee in the custody of 20 Immigration Customs Enforcement (“ICE”) at the Imperial Regional Detention Facility 21 (“IRDF”) operated by Defendant Management and Training Corporation (“MTC”). (Amd. 22 Compl. [ECF 22] ¶¶ 1, 10.) He asserts a claim under the Federal Tort Claims Act against 23 the United States and state law claims against MTC. (Amd. Compl. ⁋⁋ 1, 5, 12, 25, 27-28.) 24 Plaintiff has filed a second Motion for Appointment of Counsel. (ECF 20.) For the reasons 25 set forth below, the Motion for Appointment of Counsel is DENIED. 26 I. BACKGROUND 27 Plaintiff’s Amended Complaint alleges that following a hunger strike in protest of 28 conditions related to COVID-19, the IRDF was placed into an emergency lockdown. (Amd. 1 Compl. ¶ 13.) Plaintiff alleges he was physically removed from his cell, placed in restraints, 2 and then put into “solitary confinement . . . under fabricated charges of threats against staff 3 and inciting others to riot.” (Amd. Compl. ¶ 14.) He goes on to allege that despite a hearing 4 and an Institution Disciplinary Panel (“IDP”) report concluding the “[e]vidence [was] not 5 enough to support [the] charges against Plaintiff,” facility administrator Marrero overruled 6 the IDP and imposed a 30-day “disciplinary detention.” (Amd. Compl. ¶ 19-20.) 7 Plaintiff alleges that he pursued a grievance though multiple levels of review, but 8 the Compliance Unit refused to investigate or review his grievance. (Amd. Compl. ¶¶ 21- 9 24.) He additionally alleges the grievance denial “added untruthful uncorroborated details” 10 that were not in the record. (Amd. Compl. ¶ 21.) Plaintiff alleges this unjustified segregated 11 confinement constituted assault, false imprisonment, and intentional infliction of emotional 12 pain. (Amd. Compl. ¶¶ 25.) 13 Plaintiff’s initial Complaint survived sua sponte screening permitting the initial 14 Complaint to be served. (ECF 3). Defendant United States initially filed a Motion to 15 Dismiss, (ECF 11), however, after reviewing Plaintiff’s Opposition to it, the United States 16 withdrew the Motion to Dismiss. (ECF 13.) Plaintiff’s Motion to file an amended pleading 17 adding Defendant MTC was also granted. (ECF 21.) Defendant United States filed an 18 Answer to the Amended Complaint on March 7, 2023, (ECF 25) and it does not appear 19 from the case docket that newly added Defendant MTC has been served. 20 II. DISCUSSION 21 Plaintiff seeks appointment of counsel under 28 U.S.C. § 1915(e)(1). (ECF 20.) As 22 in his previous motion to appoint counsel that was denied, Plaintiff indicates he needs 23 appointed counsel because the issues presented in this case are complex and he has been in 24 civil detention and solitary confinement. (Id. at 1-2.1) In this second Motion to Appoint 25 Counsel he additionally argues he needs appointed counsel because he believes the fellow 26 27 1 The Court cites the pagination on Plaintiff’s Motion to Appoint Counsel for cites to 28 1 detainee that has been assisting him will soon be released on bond and departing the 2 facility. (Id. at 1.) Plaintiff also asserts that the Ninth Circuit Court of Appeals recently 3 appointed him counsel in an immigration case because he was not able to articulate his 4 claims pro se. (Id. at 1 (citing Ex. A to Motion).) 5 A. Legal Standard 6 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 7 560 F.3d 965, 970 (9th Cir. 2009). “The court may appoint counsel under section 8 [1915(e)(1)] only under ‘exceptional circumstances.’” Terrell v. Brewer, 935 F.2d 1015, 9 1017 (9th Cir. 1991); see also Palmer, 560 F.3d at 970 (citing Agyeman v. Corrs. Corp. 10 of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). “When determining whether ‘exceptional 11 circumstances’ exist, a court must consider ‘the likelihood of success on the merits as 12 well as the ability of the petitioner to articulate his claims pro se in light of the 13 complexity of the legal issues involved.” Palmer, 560 F.3d at 970 (quoting Weygandt v. 14 Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Cano v Taylor, 739 F.3d 1214, 1218 15 (9th Cir. 2014). “Neither of these considerations is dispositive and instead must be 16 viewed together.” Palmer, 560 F.3d at 760 17 B. Analysis 18 Plaintiff has not shown exceptional circumstances warranting appointment of 19 counsel. Plaintiff has demonstrated his ability to present both factual and legal arguments 20 to the Court and appears to have a basic understanding of the legal process. For example, 21 Plaintiff’s FTCA claim was found to contain allegations sufficient to survive the sua sponte 22 screening required by 28 U.S.C. §§1915(e)(2). (See ECF 3.) Defendant United States 23 withdrew a Motion to Dismiss based in part on Plaintiff’s Opposition to the Motion, (ECF 24 13), and Plaintiff successfully sought leave to file the Amended Complaint adding state 25 law claims against a new defendant (ECF 21). This record reflects that Plaintiff is capable 26 of articulating the factual allegations underlying his claim and pursing relief from the 27 Court. The Court also notes that the Order appointing counsel for Plaintiff before the Ninth 28 Circuit does not indicate he is being appointed counsel because he cannot articulate his 1 claims as Plaintiff claims. The court’s Order indicates that “[t]he court has determined that 2 appointment of pro bono counsel would benefit the court’s review in this petition.” (Ex. A 3 to Motion to Appoint Counsel [ECF 20 at 7].) Additionally, as the standards above reflect, 4 appointment of counsel depends on the specific case and the complexity of it. Appointment 5 of counsel for purposes of an appeal as to an immigration proceeding for the benefit of the 6 appellate court does not mean Plaintiff is entitled to appointment of counsel at the district 7 court level in a civil proceeding brought under the FTCA with associated state law claims. 8 It also does not appear that the legal issues involved are so complex that counsel is 9 warranted at this stage of the proceedings. See Wilbron v. Escalderon, 789 F.2d 1328, 1331 10 (9th Cir. 1986) (noting that, “[i]f all that was required to establish successfully the 11 complexity of the relevant issues was a demonstration of the need for development of 12 further facts, practically all cases would involve complex legal issues.”). Based on the 13 record before the Court, including Plaintiff’s filings thus far, the Court finds the legal issues 14 in this case are not complex and Plaintiff is able to articulate his claims. 15 Nor is the Court persuaded that Plaintiff’s ongoing detention, including periods in 16 administrative segregation, constitute exceptional circumstances. Being in custody, even 17 with periods of administrative segregation is not uncommon for plaintiff’s bringing civil 18 cases.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN SANCHEZ-RIVERA, Case No.: 22-cv-1254-BAS-BGS
12 Plaintiff, ORDER DENYING SECOND 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 UNITED STATES OF AMERICA,
15 [ECF 20] Defendant. 16 17 18 19 Plaintiff’s Amended Complaint alleges he is a detainee in the custody of 20 Immigration Customs Enforcement (“ICE”) at the Imperial Regional Detention Facility 21 (“IRDF”) operated by Defendant Management and Training Corporation (“MTC”). (Amd. 22 Compl. [ECF 22] ¶¶ 1, 10.) He asserts a claim under the Federal Tort Claims Act against 23 the United States and state law claims against MTC. (Amd. Compl. ⁋⁋ 1, 5, 12, 25, 27-28.) 24 Plaintiff has filed a second Motion for Appointment of Counsel. (ECF 20.) For the reasons 25 set forth below, the Motion for Appointment of Counsel is DENIED. 26 I. BACKGROUND 27 Plaintiff’s Amended Complaint alleges that following a hunger strike in protest of 28 conditions related to COVID-19, the IRDF was placed into an emergency lockdown. (Amd. 1 Compl. ¶ 13.) Plaintiff alleges he was physically removed from his cell, placed in restraints, 2 and then put into “solitary confinement . . . under fabricated charges of threats against staff 3 and inciting others to riot.” (Amd. Compl. ¶ 14.) He goes on to allege that despite a hearing 4 and an Institution Disciplinary Panel (“IDP”) report concluding the “[e]vidence [was] not 5 enough to support [the] charges against Plaintiff,” facility administrator Marrero overruled 6 the IDP and imposed a 30-day “disciplinary detention.” (Amd. Compl. ¶ 19-20.) 7 Plaintiff alleges that he pursued a grievance though multiple levels of review, but 8 the Compliance Unit refused to investigate or review his grievance. (Amd. Compl. ¶¶ 21- 9 24.) He additionally alleges the grievance denial “added untruthful uncorroborated details” 10 that were not in the record. (Amd. Compl. ¶ 21.) Plaintiff alleges this unjustified segregated 11 confinement constituted assault, false imprisonment, and intentional infliction of emotional 12 pain. (Amd. Compl. ¶¶ 25.) 13 Plaintiff’s initial Complaint survived sua sponte screening permitting the initial 14 Complaint to be served. (ECF 3). Defendant United States initially filed a Motion to 15 Dismiss, (ECF 11), however, after reviewing Plaintiff’s Opposition to it, the United States 16 withdrew the Motion to Dismiss. (ECF 13.) Plaintiff’s Motion to file an amended pleading 17 adding Defendant MTC was also granted. (ECF 21.) Defendant United States filed an 18 Answer to the Amended Complaint on March 7, 2023, (ECF 25) and it does not appear 19 from the case docket that newly added Defendant MTC has been served. 20 II. DISCUSSION 21 Plaintiff seeks appointment of counsel under 28 U.S.C. § 1915(e)(1). (ECF 20.) As 22 in his previous motion to appoint counsel that was denied, Plaintiff indicates he needs 23 appointed counsel because the issues presented in this case are complex and he has been in 24 civil detention and solitary confinement. (Id. at 1-2.1) In this second Motion to Appoint 25 Counsel he additionally argues he needs appointed counsel because he believes the fellow 26 27 1 The Court cites the pagination on Plaintiff’s Motion to Appoint Counsel for cites to 28 1 detainee that has been assisting him will soon be released on bond and departing the 2 facility. (Id. at 1.) Plaintiff also asserts that the Ninth Circuit Court of Appeals recently 3 appointed him counsel in an immigration case because he was not able to articulate his 4 claims pro se. (Id. at 1 (citing Ex. A to Motion).) 5 A. Legal Standard 6 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 7 560 F.3d 965, 970 (9th Cir. 2009). “The court may appoint counsel under section 8 [1915(e)(1)] only under ‘exceptional circumstances.’” Terrell v. Brewer, 935 F.2d 1015, 9 1017 (9th Cir. 1991); see also Palmer, 560 F.3d at 970 (citing Agyeman v. Corrs. Corp. 10 of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). “When determining whether ‘exceptional 11 circumstances’ exist, a court must consider ‘the likelihood of success on the merits as 12 well as the ability of the petitioner to articulate his claims pro se in light of the 13 complexity of the legal issues involved.” Palmer, 560 F.3d at 970 (quoting Weygandt v. 14 Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Cano v Taylor, 739 F.3d 1214, 1218 15 (9th Cir. 2014). “Neither of these considerations is dispositive and instead must be 16 viewed together.” Palmer, 560 F.3d at 760 17 B. Analysis 18 Plaintiff has not shown exceptional circumstances warranting appointment of 19 counsel. Plaintiff has demonstrated his ability to present both factual and legal arguments 20 to the Court and appears to have a basic understanding of the legal process. For example, 21 Plaintiff’s FTCA claim was found to contain allegations sufficient to survive the sua sponte 22 screening required by 28 U.S.C. §§1915(e)(2). (See ECF 3.) Defendant United States 23 withdrew a Motion to Dismiss based in part on Plaintiff’s Opposition to the Motion, (ECF 24 13), and Plaintiff successfully sought leave to file the Amended Complaint adding state 25 law claims against a new defendant (ECF 21). This record reflects that Plaintiff is capable 26 of articulating the factual allegations underlying his claim and pursing relief from the 27 Court. The Court also notes that the Order appointing counsel for Plaintiff before the Ninth 28 Circuit does not indicate he is being appointed counsel because he cannot articulate his 1 claims as Plaintiff claims. The court’s Order indicates that “[t]he court has determined that 2 appointment of pro bono counsel would benefit the court’s review in this petition.” (Ex. A 3 to Motion to Appoint Counsel [ECF 20 at 7].) Additionally, as the standards above reflect, 4 appointment of counsel depends on the specific case and the complexity of it. Appointment 5 of counsel for purposes of an appeal as to an immigration proceeding for the benefit of the 6 appellate court does not mean Plaintiff is entitled to appointment of counsel at the district 7 court level in a civil proceeding brought under the FTCA with associated state law claims. 8 It also does not appear that the legal issues involved are so complex that counsel is 9 warranted at this stage of the proceedings. See Wilbron v. Escalderon, 789 F.2d 1328, 1331 10 (9th Cir. 1986) (noting that, “[i]f all that was required to establish successfully the 11 complexity of the relevant issues was a demonstration of the need for development of 12 further facts, practically all cases would involve complex legal issues.”). Based on the 13 record before the Court, including Plaintiff’s filings thus far, the Court finds the legal issues 14 in this case are not complex and Plaintiff is able to articulate his claims. 15 Nor is the Court persuaded that Plaintiff’s ongoing detention, including periods in 16 administrative segregation, constitute exceptional circumstances. Being in custody, even 17 with periods of administrative segregation is not uncommon for plaintiff’s bringing civil 18 cases. These are not the sort of difficulties that will or have precluded Plaintiff from 19 articulating his claims or proceeding with this case. In short, these are not exceptional 20 circumstances. The Court has also considered Plaintiff’s argument that he will no longer 21 be able to articulate his claims without the assistance of a fellow detainee. However, the 22 Court does not find losing the assistance of a fellow detainee constitutes exceptional 23 circumstances. 24 As to his likelihood of success on the merits, as noted above, Plaintiff has had some 25 success in surviving sua sponte screening as to his FTCA claim and amending his 26 complaint to add an additional party. However, when his likelihood of success is 27 considered in conjunction with his ability to articulate his claims and the complexity of the 28 issues involved, he has not shown exceptional circumstances justifying appointment of 1 |}counsel. Accordingly, the Court DENIES Plaintiff's request for appointment of counsel. 2 ||(ECF 20.) 3 CONCLUSION 4 Plaintiff's Motion for Appointment of Counsel (ECF 20) is DENIED. 5 IT IS SO ORDERED. 6 Dated: March 21, 2023 : 2 p / / 7 on. Bernard G. Skomal 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28