1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 A.S. URMANCHEEV, Case No.: 22-CV-1039 JLS (MMP) #A075117610, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION FOR APPOINTMENT OF v. COUNSEL 14
15 UNITED STATES, et al., (ECF No. 38) 16 Defendants. 17 Presently before the Court is pro se Plaintiff A.S. Urmancheev’s Motion for 18 Appointment of Counsel (“Mot.,” ECF No. 38). 19 BACKGROUND 20 On July 15, 2022, Plaintiff—who had been detained at the Otay Mesa Detention 21 Center (“Otay Mesa”) in San Diego, California1—filed a Complaint pursuant to the 22 Administrative Procedures Act (“APA”); the Federal Tort Claims Act (“FTCA”); the 23 Immigration and Naturalization Act (“INA”); the First, Fourth, and Fifth Amendments to 24 the United States Constitution; and unspecified provisions of the California Constitution 25 26
27 1 Though Plaintiff does not clarify his detention status in any of his pleadings, Plaintiff appears to no 28 1 and California Civil Code. See generally ECF No. 1 (“Compl.”). Plaintiff also filed a 2 Motion to Proceed in Forma Pauperis (“IFP”) on the same day. See ECF No. 2. 3 On October 5, 2022, this Court granted Plaintiff’s IFP Motion and dismissed 4 Plaintiff’s original Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for 5 failure to pass muster under Federal Rule of Civil Procedure 8. See generally ECF No. 3. 6 The Court also noted several deficiencies in each of Plaintiff’s causes of action. For 7 example, Plaintiff had failed to state INA, APA, and FTCA claims because he had not 8 adequately alleged exhaustion of his administrative remedies. Id. at 7. Plaintiff’s 9 constitutional claims were also found wanting because the Court doubted whether Plaintiff 10 could invoke Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 11 403 U.S. 388 (1971). See id. at 10. The Court, however, granted Plaintiff forty-five (45) 12 days to file an amended complaint. 13 After moving for—and receiving—multiple extensions, see ECF Nos. 8, 13, 16, 18, 14 Plaintiff filed a First Amended Complaint (“FAC,” ECF No. 20) on July 14, 2023. After 15 conducting the same mandatory screening, the Court dismissed the FAC on October 30 of 16 the same year. See ECF No. 22 (“FAC Order”). Though Plaintiff had provided more 17 factual detail in his FAC with respect to some of his claims, he again failed to sufficiently 18 plead the exhaustion of administrative remedies as to his FTCA claims (the FAC did not 19 include the INA and APA causes of action contained in the original Complaint). See id. 20 at 5–6. Meanwhile, the Court found Plaintiff could not bring his Fifth Amendment claim 21 for damages against the United States itself—the only defendant named in the FAC—on 22 sovereign immunity grounds. See id. at 9. Finally, the Court explained that the FAC lacked 23 any theory of liability to support Plaintiff’s state law claims. Id. at 10. The Court again 24 granted Plaintiff leave to amend. 25 Another round of motions to extend ensued before Plaintiff filed his Second 26 Amended Complaint (“SAC,” ECF No. 29) on April 30, 2024. On January 10, 2025, the 27 Court again conducted mandatory screening and dismissed all claims in Plaintiff’s Second 28 Amended Complaint against Defendants DHS ICE Officers Boone, Boyd, Albence, 1 Archimbault, Ortiz, Paramo, Gracio, Dobson, Beckhelm, Kitchens, Jobe, Redcay, 2 Ramirez, Wilcox, Kendall, Cordero, Nguen, Ramirez, Brunette, Estudio, and Saxton 3 without leave to amend pursuant to 28 U.S.C. § 1915(e)(2). See generally ECF No. 30 4 (“SAC Order”). The Court further dismissed without leave to amend all claims against 5 Defendant United States, with the exception of the FTCA claims for false imprisonment, 6 negligence, and intentional infliction of emotional distress. SAC Order at 21. 7 As to the remaining FTCA claims for false imprisonment, negligence, and 8 intentional infliction of emotional distress, the Court found Plaintiff’s allegations, 9 construed liberally, were adequately pled to satisfy the low threshold for surviving 10 § 1915(e)(2) screening. Id. at 9–12. The Court then ordered the U.S. Marshal to serve a 11 copy of the SAC and summons upon Defendant United States of America, and ordered 12 Defendant, once served, to reply to Plaintiff’s SAC within the time provided by the 13 applicable provisions of the Federal Rules of Civil Procedure 12(a) and 15(a)(3). Id. at 21. 14 Subsequently, on April 14, 2025, Defendant filed a Motion to Dismiss or, 15 Alternatively, Partial Motion to Dismiss (“MTD,” ECF No. 35). Defendant, in its Motion, 16 contends Plaintiff failed to administratively exhaust his claims as required by the FTCA, 17 and that the INA creates a jurisdictional bar for Plaintiff’s false imprisonment claim. See 18 generally MTD. 19 On April 18, 2025, before filing an opposition, Plaintiff filed the instant Motion for 20 Counsel. See Mot. 21 LEGAL STANDARD 22 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 23 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 24 Rather, the appointment of counsel in a civil case “is a privilege and not a right.” United 25 States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. Rhay, 26 310 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the district court 27 limited discretion to “request” that an attorney represent an indigent civil litigant in 28 “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th 1 Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding of 2 exceptional circumstances requires an evaluation of both the ‘likelihood of success on the 3 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 4 of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed 5 together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. 6 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 7 ANALYSIS 8 The Court finds Plaintiff’s assertion he is “confident that, if he is represented by 9 counsel in the instant matter, he will prevail on his claims because the Defendant’s 10 violations of his liberty and person are blatant and contrary to the federal and state laws,” 11 Mot. at 3, insufficient to show a likelihood of success on the merits. While the Court found 12 several of Plaintiff’s claims sufficient to satisfy the “low threshold for surviving 13 § 1915(e)(2) screening,” the majority of Plaintiff’s claims in this case, and all Defendants 14 except the United States, have been dismissed with prejudice. See SAC Order.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 A.S. URMANCHEEV, Case No.: 22-CV-1039 JLS (MMP) #A075117610, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION FOR APPOINTMENT OF v. COUNSEL 14
15 UNITED STATES, et al., (ECF No. 38) 16 Defendants. 17 Presently before the Court is pro se Plaintiff A.S. Urmancheev’s Motion for 18 Appointment of Counsel (“Mot.,” ECF No. 38). 19 BACKGROUND 20 On July 15, 2022, Plaintiff—who had been detained at the Otay Mesa Detention 21 Center (“Otay Mesa”) in San Diego, California1—filed a Complaint pursuant to the 22 Administrative Procedures Act (“APA”); the Federal Tort Claims Act (“FTCA”); the 23 Immigration and Naturalization Act (“INA”); the First, Fourth, and Fifth Amendments to 24 the United States Constitution; and unspecified provisions of the California Constitution 25 26
27 1 Though Plaintiff does not clarify his detention status in any of his pleadings, Plaintiff appears to no 28 1 and California Civil Code. See generally ECF No. 1 (“Compl.”). Plaintiff also filed a 2 Motion to Proceed in Forma Pauperis (“IFP”) on the same day. See ECF No. 2. 3 On October 5, 2022, this Court granted Plaintiff’s IFP Motion and dismissed 4 Plaintiff’s original Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for 5 failure to pass muster under Federal Rule of Civil Procedure 8. See generally ECF No. 3. 6 The Court also noted several deficiencies in each of Plaintiff’s causes of action. For 7 example, Plaintiff had failed to state INA, APA, and FTCA claims because he had not 8 adequately alleged exhaustion of his administrative remedies. Id. at 7. Plaintiff’s 9 constitutional claims were also found wanting because the Court doubted whether Plaintiff 10 could invoke Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 11 403 U.S. 388 (1971). See id. at 10. The Court, however, granted Plaintiff forty-five (45) 12 days to file an amended complaint. 13 After moving for—and receiving—multiple extensions, see ECF Nos. 8, 13, 16, 18, 14 Plaintiff filed a First Amended Complaint (“FAC,” ECF No. 20) on July 14, 2023. After 15 conducting the same mandatory screening, the Court dismissed the FAC on October 30 of 16 the same year. See ECF No. 22 (“FAC Order”). Though Plaintiff had provided more 17 factual detail in his FAC with respect to some of his claims, he again failed to sufficiently 18 plead the exhaustion of administrative remedies as to his FTCA claims (the FAC did not 19 include the INA and APA causes of action contained in the original Complaint). See id. 20 at 5–6. Meanwhile, the Court found Plaintiff could not bring his Fifth Amendment claim 21 for damages against the United States itself—the only defendant named in the FAC—on 22 sovereign immunity grounds. See id. at 9. Finally, the Court explained that the FAC lacked 23 any theory of liability to support Plaintiff’s state law claims. Id. at 10. The Court again 24 granted Plaintiff leave to amend. 25 Another round of motions to extend ensued before Plaintiff filed his Second 26 Amended Complaint (“SAC,” ECF No. 29) on April 30, 2024. On January 10, 2025, the 27 Court again conducted mandatory screening and dismissed all claims in Plaintiff’s Second 28 Amended Complaint against Defendants DHS ICE Officers Boone, Boyd, Albence, 1 Archimbault, Ortiz, Paramo, Gracio, Dobson, Beckhelm, Kitchens, Jobe, Redcay, 2 Ramirez, Wilcox, Kendall, Cordero, Nguen, Ramirez, Brunette, Estudio, and Saxton 3 without leave to amend pursuant to 28 U.S.C. § 1915(e)(2). See generally ECF No. 30 4 (“SAC Order”). The Court further dismissed without leave to amend all claims against 5 Defendant United States, with the exception of the FTCA claims for false imprisonment, 6 negligence, and intentional infliction of emotional distress. SAC Order at 21. 7 As to the remaining FTCA claims for false imprisonment, negligence, and 8 intentional infliction of emotional distress, the Court found Plaintiff’s allegations, 9 construed liberally, were adequately pled to satisfy the low threshold for surviving 10 § 1915(e)(2) screening. Id. at 9–12. The Court then ordered the U.S. Marshal to serve a 11 copy of the SAC and summons upon Defendant United States of America, and ordered 12 Defendant, once served, to reply to Plaintiff’s SAC within the time provided by the 13 applicable provisions of the Federal Rules of Civil Procedure 12(a) and 15(a)(3). Id. at 21. 14 Subsequently, on April 14, 2025, Defendant filed a Motion to Dismiss or, 15 Alternatively, Partial Motion to Dismiss (“MTD,” ECF No. 35). Defendant, in its Motion, 16 contends Plaintiff failed to administratively exhaust his claims as required by the FTCA, 17 and that the INA creates a jurisdictional bar for Plaintiff’s false imprisonment claim. See 18 generally MTD. 19 On April 18, 2025, before filing an opposition, Plaintiff filed the instant Motion for 20 Counsel. See Mot. 21 LEGAL STANDARD 22 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 23 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 24 Rather, the appointment of counsel in a civil case “is a privilege and not a right.” United 25 States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. Rhay, 26 310 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the district court 27 limited discretion to “request” that an attorney represent an indigent civil litigant in 28 “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th 1 Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding of 2 exceptional circumstances requires an evaluation of both the ‘likelihood of success on the 3 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 4 of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed 5 together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. 6 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 7 ANALYSIS 8 The Court finds Plaintiff’s assertion he is “confident that, if he is represented by 9 counsel in the instant matter, he will prevail on his claims because the Defendant’s 10 violations of his liberty and person are blatant and contrary to the federal and state laws,” 11 Mot. at 3, insufficient to show a likelihood of success on the merits. While the Court found 12 several of Plaintiff’s claims sufficient to satisfy the “low threshold for surviving 13 § 1915(e)(2) screening,” the majority of Plaintiff’s claims in this case, and all Defendants 14 except the United States, have been dismissed with prejudice. See SAC Order. And 15 ultimately, at present, “it is too early for the Court to determine [Plaintiff’s] likelihood of 16 success on the merits.” Clack v. San Diego Sheriffs Dep’t, No. 08CV0624 IEG (RBB), 17 2009 WL 413030, at *2 (S.D. Cal. Feb. 18, 2009) (noting that the court was unable to 18 conclude that the plaintiff was likely to succeed even where the plaintiff’s complaint 19 survived IFP screening process). 20 Moreover, the Court is not persuaded that Plaintiff is unable to effectively litigate 21 the case pro se in light of the complexity of the issues involved. While Plaintiff argues the 22 “[FTCA,] federal and state constitutional law, and state tort law are astonishingly 23 convoluted aspects of civil law,” Mot. at 2, Plaintiff’s SAC’s only surviving claims allege 24 false imprisonment, intentional infliction of emotional distress, and negligence, which the 25 Court does not find to be exceptionally complex. And Plaintiff’s filings show that he is 26 “capable of legibly articulating the facts and circumstances relevant to his claims.” Ward 27 v. Pascual, No. 3:23-CV-1423-BAS-AHG, 2023 WL 7029216, at *6 (S.D. Cal. Oct. 25, 28 2023). While the Court is mindful of the challenges before Plaintiff, those challenges do 1 on their own constitute “exceptional circumstances” warranting the appointment of 2 |{counsel. See, e.g., id.; see also Baptiste v. Hatton, No. 19-CV-06551-HSG, 3 WL 5788384, at *5 (N.D. Cal. Nov. 6, 2019). 4 In light of the foregoing, Plaintiff's Motion for Appointment of Counsel (ECF 5 || No. 38) is DENIED without prejudice to Plaintiff refiling should circumstances change. 6 IT IS SO ORDERED. 7 || Dated: May 28, 2025 . tt f Ht 8 on. Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5