Urmancheev v. United States

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA A.S. URMANCHEEV, Case No.: 22-CV-1039 JLS (MMP) #A075117610, ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION FOR APPOINTMENT OF v. COUNSEL

UNITED STATES, et al., (ECF No. 38) 16 Defendants.

Presently before the Court is pro se Plaintiff A.S. Urmancheev’s Motion for Appointment of Counsel (“Mot.,” ECF No. 38).

BACKGROUND On July 15, 2022, Plaintiff—who had been detained at the Otay Mesa Detention Center (“Otay Mesa”) in San Diego, California1—filed a Complaint pursuant to the Administrative Procedures Act (“APA”); the Federal Tort Claims Act (“FTCA”); the Immigration and Naturalization Act (“INA”); the First, Fourth, and Fifth Amendments to the United States Constitution; and unspecified provisions of the California Constitution Though Plaintiff does not clarify his detention status in any of his pleadings, Plaintiff appears to no and California Civil Code. See generally ECF No. 1 (“Compl.”). Plaintiff also filed a 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 Plaintiff’s original Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for 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 example, Plaintiff had failed to state INA, APA, and FTCA claims because he had not adequately alleged exhaustion of his administrative remedies. Id. at 7. Plaintiff’s constitutional claims were also found wanting because the Court doubted whether Plaintiff could invoke Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See id. at 10. The Court, however, granted Plaintiff forty-five (45) days to file an amended complaint.

13 After moving for—and receiving—multiple extensions, see ECF Nos. 8, 13, 16, 18, Plaintiff filed a First Amended Complaint (“FAC,” ECF No. 20) on July 14, 2023. After conducting the same mandatory screening, the Court dismissed the FAC on October 30 of the same year. See ECF No. 22 (“FAC Order”). Though Plaintiff had provided more factual detail in his FAC with respect to some of his claims, he again failed to sufficiently plead the exhaustion of administrative remedies as to his FTCA claims (the FAC did not include the INA and APA causes of action contained in the original Complaint). See id. at 5–6. Meanwhile, the Court found Plaintiff could not bring his Fifth Amendment claim for damages against the United States itself—the only defendant named in the FAC—on sovereign immunity grounds. See id. at 9. Finally, the Court explained that the FAC lacked any theory of liability to support Plaintiff’s state law claims. Id. at 10. The Court again granted Plaintiff leave to amend.

25 Another round of motions to extend ensued before Plaintiff filed his Second Amended Complaint (“SAC,” ECF No. 29) on April 30, 2024. On January 10, 2025, the Court again conducted mandatory screening and dismissed all claims in Plaintiff’s Second Amended Complaint against Defendants DHS ICE Officers Boone, Boyd, Albence, Archimbault, Ortiz, Paramo, Gracio, Dobson, Beckhelm, Kitchens, Jobe, Redcay, Ramirez, Wilcox, Kendall, Cordero, Nguen, Ramirez, Brunette, Estudio, and Saxton without leave to amend pursuant to 28 U.S.C. § 1915(e)(2). See generally ECF No. 30 (“SAC Order”). The Court further dismissed without leave to amend all claims against Defendant United States, with the exception of the FTCA claims for false imprisonment, negligence, and intentional infliction of emotional distress. SAC Order at 21.

7 As to the remaining FTCA claims for false imprisonment, negligence, and intentional infliction of emotional distress, the Court found Plaintiff’s allegations, construed liberally, were adequately pled to satisfy the low threshold for surviving § 1915(e)(2) screening. Id. at 9–12. The Court then ordered the U.S. Marshal to serve a copy of the SAC and summons upon Defendant United States of America, and ordered Defendant, once served, to reply to Plaintiff’s SAC within the time provided by the 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, Alternatively, Partial Motion to Dismiss (“MTD,” ECF No. 35). Defendant, in its Motion, contends Plaintiff failed to administratively exhaust his claims as required by the FTCA, and that the INA creates a jurisdictional bar for Plaintiff’s false imprisonment claim. See generally MTD.

19 On April 18, 2025, before filing an opposition, Plaintiff filed the instant Motion for 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 States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. Rhay, 310 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” that an attorney represent an indigent civil litigant in “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding of exceptional circumstances requires an evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. 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 counsel in the instant matter, he will prevail on his claims because the Defendant’s violations of his liberty and person are blatant and contrary to the federal and state laws,” Mot. at 3, insufficient to show a likelihood of success on the merits. While the Court found several of Plaintiff’s claims sufficient to satisfy the “low threshold for surviving § 1915(e)(2) screening,” the majority of Plaintiff’s claims in this case, and all Defendants except the United States, have been dismissed with prejudice. See SAC Order. And ultimately, at present, “it is too early for the Court to determine [Plaintiff’s] likelihood of success on the merits.” Clack v. San Diego Sheriffs Dep’t, No. 08CV0624 IEG (RBB), 2009 WL 413030, at *2 (S.D. Cal. Feb. 18, 2009) (noting that the court was unable to conclude that the plaintiff was likely to succeed even where the plaintiff’s complaint survived IFP screening process).

20 Moreover, the Court is not persuaded that Plaintiff is unable to effectively litigate the case pro se in light of the complexity of the issues involved. While Plaintiff argues the “[FTCA,] federal and state constitutional law, and state tort law are astonishingly convoluted aspects of civil law,” Mot. at 2, Plaintiff’s SAC’s only surviving claims allege false imprisonment, intentional infliction of emotional distress, and negligence, which the Court does not find to be exceptionally complex. And Plaintiff’s filings show that he is “capable of legibly articulating the facts and circumstances relevant to his claims.” Ward v. Pascual, No. 3:23-CV-1423-BAS-AHG, 2023 WL 7029216, at *6 (S.D. Cal. Oct. 25, 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 |{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 || 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