United States v. Hutt

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES, et al., Case No. 21-cv-01292-HSG 8 Plaintiffs, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS 9 v. AND MOTION FOR APPOINTMENT OF COUNSEL 10 NANCY HUTT, et al., Re: Dkt. Nos. 3, 10 11 Defendants. 12 Plaintiff David Shu filed a qui tam action against Nancy Hutt, an arbitrator for the United 13 States Postal Service (“USPS”); two USPS employees, Donald Swartz and Priscilla Jena Rivera; 14 and an individual named Oliverio Leon Bacilios, who filed a claim for property damage with 15 USPS. Dkt. No. 1 (“Compl.”). Pending before the Court is Plaintiff’s motion to proceed in forma 16 pauperis. Dkt. No. 2. Plaintiff has also filed a motion for appointment of counsel. See Dkt. No. 17 10 (“Mot.”). For the reasons explained below, both motions are DENIED. 18 Because Plaintiff is not represented by counsel, he cannot proceed pro se in a qui tam action. See Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1128 (9th Cir. 2007) 19 (concluding “a pro se relator cannot prosecute a qui tam action on behalf of the United States”). 20 The Court previously dismissed Plaintiff’s claim under the False Claims Act without leave to 21 amend and without prejudice on this ground, and further instructed Plaintiff that his claim under 22 the False Claims Act “cannot be pursued, in this or any other case, unless and until Plaintiff retains 23 a lawyer.” See United States ex rel et al v. Hutt, 4:20-cv-07614-HSG (N.D. Cal. Jan. 6, 2021). 24 Because Plaintiff has not retained a lawyer, the Court again DENIES Plaintiff’s motion to proceed 25 in forma pauperis and DISMISSES the complaint without leave to amend and without prejudice 26 based on Plaintiff’s pro se status. 27 To the extent that Plaintiff seeks to circumvent the Ninth Circuit’s holding in Stoner by 1 bringing a qui tam action pro se and then asking the Court to appoint him a lawyer, that request is 2 || denied. Putting aside the propriety of such a request, this case plainly does not present the 3 “exceptional circumstances” required for a court to appoint counsel for an indigent civil litigant 4 |} under 28 U.S.C. § 1915(e)C1). Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citations 5 omitted). 6 A finding of “exceptional circumstances” requires an evaluation of the likelihood of the 7 || plaintiffs success on the merits and of the plaintiff's ability to articulate their claims pro se in g || light of the complexity of the legal issues involved. See Agyeman, 390 F.3d at 1103. Both factors 9 must be viewed together before reaching a decision on a request for counsel under § 1915. See id. 19 || Plaintiff contends that his case presents an “exceptional circumstance” because he does not have 11 the ability to clearly articulate his claims pro se, since English is not his native language, and

12 because his claims have a high likelihood of success. See Mot. at 4-5. E 13 The Court disagrees. Despite any language barriers, Plaintiff has thus far sufficiently 14 articulated his claims pro se, as demonstrated by his complaint totaling 50 pages. See Dkt. No. 1. 5 15 But most importantly, and as explained in the Court’s prior orders analyzing the same claims 16 arising from the same set of facts, the Court finds that Plaintiff has not demonstrated a likelihood 5 U7 of success on his claims, and that he cannot do so. See, e.g., Shu v. Hutt, 4:19-cv-06969-HSG 5 18 (N.D. Cal. Apr. 27, 2020). Accordingly, Plaintiff's motion to proceed in forma pauperis and his 19 motion for appointment of counsel are DENIED. The Clerk shall terminate all pending motions 20 and close the file. No further pro se filings will be accepted in this closed case. IT IS SO ORDERED. Dated: 12/10/2021 2 HAYWOOD S. GILLIAM, JR. 24 United States District Judge 25 26 27 28