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 MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 UNITED STATES OF AMERICA, [ECF 5] 15 Defendant. 16 17 18 Plaintiff’s Complaint alleges he is a detainee in the custody of Immigration Customs 19 Enforcement (“ICE”) at the Imperial Regional Detention Facility (“IRDF”). (Compl. [ECF 20 1] ¶¶ 1, 10.) He asserts a claim under the Federal Tort Claims Act against the United States. 21 (Compl. ¶ 5.) Plaintiff has filed a Motion for Appointment of Counsel. (ECF 5.) 22 I. BACKGROUND 23 Plaintiff’s Complaint alleges that following a hunger strike in protest of conditions 24 related to COVID-19, the IRDF was placed into an emergency lockdown. (Compl. ¶ 32.) 25 Plaintiff was physically removed from his cell, placed in restraints, and then put into 26 “solitary confinement . . . under fabricated charges of threats against staff and inciting 27 28 1 others to riot.” (Compl. ¶ 33; see also ECF 3 at 5 (Screening Order summarizing 2 allegations of the Complaint).) He goes on to allege that despite a hearing and an Institution 3 Disciplinary Panel (“IDP”) report concluding the “[e]vidence [was] not enough to support 4 [the] charges against Plaintiff,” facility administrator Marrero overruled the IDP and 5 imposed a 30-day “disciplinary detention.” (Compl. ¶ 45-46; see also ECF 3 at 5-6.) 6 Plaintiff alleges that he pursued a grievance, but it was denied. (Compl. ¶ 47; see 7 also ECF 3 at 6.) He additionally alleges the grievance denial “added untruthful 8 uncorroborated details” that were not in the record. (Compl. ¶ 47; see also ECF 3 at 6.) 9 Plaintiff alleges this unjustified segregated confinement constituted assault, false 10 imprisonment, and intentional infliction of emotional pain for which he is entitled to 11 compensatory damages. (Compl. ¶¶ 53-54; see also ECF 3 at 5-6.) Plaintiff attempted to 12 pursue a grievance with ICE, but he alleges ICE “refused to investigate, review, and 13 adjudicate the grievance.” (Compl. ¶¶ 49-51.) 14 Plaintiff’s Complaint survived the “‘low threshold’ for sua sponte screening” on 15 September 6, 2022. (ECF 3.) In the same Order, the assigned district judge ordered issuance 16 of the summons and service by the U.S. Marshal after receiving forms to be completed by 17 Plaintiff. (ECF 3.) Defendant has not filed a response to the Complaint yet.2 18 II. DISCUSSION 19 Plaintiff seeks appointment of counsel under 28 U.S.C. § 1915(e)(1). (ECF 5.) 20 Plaintiff indicates he needs appointed counsel because he has very limited education in the 21 law and the issues presented in this case are complex. (Id. at 3.) Plaintiff argues he has met 22 the exceptional circumstances test because of his prolonged civil detention and solitary 23 confinement. (Id.) He indicates that his law library access is severely limited or nonexistent 24 when he is in administrative segregation. (Id.) He also explains that he has unsuccessfully 25 26 27 1 The Court’s page citations are to the CM/ECF electronic pagination unless otherwise indicated. 28 1 sought legal counsel and “adequate access to mandated legal materials at the ICE detention 2 facility.” (Id. at 3-4.) 3 A. Legal Standard 4 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 5 560 F.3d 965, 970 (9th Cir. 2009). “The court may appoint counsel under section 6 [1915(e)(1)] only under ‘exceptional circumstances.’” Terrell v. Brewer, 935 F.2d 1015, 7 1017 (9th Cir. 1991); see also Palmer, 560 F.3d at 970 (citing Agyeman v. Corrs. Corp. 8 of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “When determining whether ‘exceptional 9 circumstances’ exist, a court must consider ‘the likelihood of success on the merits as 10 well as the ability of the petitioner to articulate his claims pro se in light of the 11 complexity of the legal issues involved.” Palmer, 560 F.3d at 970 (quoting Weygandt v. 12 Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Cano v Taylor, 739 F.3d 1214, 1218 13 (9th Cir. 2014). “Neither of these considerations is dispositive and instead must be 14 viewed together.” Palmer, 560 F.3d at 760 15 B. Analysis 16 Plaintiff has not shown exceptional circumstances warranting appointment of 17 counsel. Plaintiff has demonstrated his ability to present both factual and legal arguments 18 to the Court and appears to have a basic understanding of the legal process. For example, 19 Plaintiff’s FTCA claim was found to contain allegations sufficient to survive the sua sponte 20 screening required by 28 U.S.C. §§1915(e)(2). (See ECF 3.) And, a review of the 21 Complaint, as well as a recently filed Motion to Amend the Complaint, reflect that Plaintiff 22 is capable of articulating the factual allegations underlying his claim and pursing relief 23 from the Court. 24 It also does not appear that the legal issues involved are so complex that counsel is 25 warranted at this stage of the proceedings. See Wilbron v. Escalderon, 789 F.2d 1328, 1331 26 (9th Cir. 1986) (noting that, “[i]f all that was required to establish successfully the 27 complexity of the relevant issues was a demonstration of the need for development of 28 further facts, practically all cases would involve complex legal issues.”). In support of his 1 assertion this case presents very complex issues of law, Plaintiff cites a footnote in the 2 ||Order screening his Complaint. (ECF 5 at 3 (citing ECF 3 n.3).) The footnote simply 3 ||acknowledges that whether prison officials and staff are considered law enforcement for 4 ||purposes of intentional torts under the FTCA, is not a settled issue. (ECF 3 at 7 n.2 5 || (citations omitted).) The acknowledgment of an unsettled legal issue in a footnote does not 6 ||alone make this case complex. Based on the record before the Court, including Plaintiffs 7 || filings thus far, the Court finds the legal issues in this case are not complex and Plaintiff is 8 to articulate his claims. 9 Nor is the Court persuaded that Plaintiff's ongoing detention, including periods in 10 ||/administrative segregation, constitute exceptional circumstances. Being in custody, even 11 || with periods of administrative segregation and its associated limited law library access and 12 || limited access to legal materials, is rather common for plaintiff's bringing civil cases. These 13 |/are not the sort of difficulties that will or have precluded Plaintiff from articulating his 14 || claims or proceeding with this case. In short, these are not exceptional circumstances. 15 As to his likelihood of success on the merits, as noted above, Plaintiff has had some 16 || success in surviving sua sponte screening and being allowed to proceed on his FTCA claim. 17 || However, screening is a low threshold and when his likelihood of success is considered in 18 |/conjunction with his ability to articulate his claims and the complexity of the issues 19 involved, he has not shown exceptional circumstances justifying appointment of counsel. 20 || Accordingly, the Court DENIES Plaintiff's request for appointment of counsel. (ECF No. 21 22 CONCLUSION 23 Plaintiff's Motion for Appointment of Counsel (ECF 5) is DENIED. 24 IT IS SO ORDERED. 25 Dated: November 9, 2022 p / / 26 on. Bernard G. Skomal 27 United States Magistrate Judge 28