Hiramanek et al v. Clark et al

Filing 578

ORDER by Judge Ronald M. Whyte denying 500 Motion to Appoint Counsel and Serve Complaint on U.S. Attorney General. (rmwlc2, COURT STAFF) (Filed on 4/8/2016).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ADIL HIRAMANEK, et al.,

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Case No. 5:13-cv-00228-RMW

Plaintiffs,
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v.
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L. MICHAEL CLARK, et al.,

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Defendants.

ORDER DENYING MOTION TO
APPOINT COUNSEL AND SERVE
COMPLAINT ON U.S. ATTORNEY
GENERAL
Re: Dkt. No. 500

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In this case alleging discrimination based on disability and race, pro se plaintiffs Roda and

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Adil Hiramanek, mother and son, move the court to appoint counsel for Ms. Hiramanek for their

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upcoming trial against defendants Superior Court of California, County of Santa Clara1 and Beth

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Miller. Dkt. No. 500. Plaintiffs also move to have this court serve plaintiffs’ complaint on the U.S.

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Department of Justice as the real party in interest in plaintiffs’ claims under the Americans with

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Disabilities Act (“ADA”).2 The court rules as follows.

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I.

MOTION TO APPOINT COUNSEL
Ms. Hiramanek asks that the court appoint counsel to represent her at trial in her claim

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After plaintiffs filed their motion, the court granted summary judgment for the defendant on the
claims against the Superior Court. Dkt. Nos. 546, 570.
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Despite the fact that no party filed an opposition to plaintiffs’ motion, plaintiffs also filed a
“reply” in support of their motion on February 25, 2016 that raised new arguments that were not
part of plaintiffs’ initial ex parte application. See Dkt. No. 554.
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5:13-cv-00228-RMW
ORDER DENYING MOT. TO APPOINT COUNSEL & SERVE COMPLAINT ON U.S. ATTORNEY GENERAL

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alleging racial discrimination and violations of the ADA.3 Ms. Hiramanek argues that she is

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medically disabled and has spent most of her life outside the United States. Accordingly, she

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argues, she will not be able to articulate her claims in light of the complexity of the issues

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involved. Ms. Hiramanek is proceeding in forma pauperis, and she argues that she has tried

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unsuccessfully to obtain representation.

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There is no constitutional right to counsel in a civil case unless an indigent litigant may

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lose her physical liberty if she loses the litigation. Lassiter v. Dep’t of Social Services, 452 U.S.

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18, 25 (1981). However, a court “may request an attorney to represent any person unable to afford

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counsel.” 28 U.S.C. § 1915(e)(1). The court may ask counsel to represent an indigent litigant
under § 1915 only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

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United States District Court
Northern District of California

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2009). The determination of whether to appoint counsel requires an evaluation of the likelihood of

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success on the merits and the ability of the plaintiff to articulate her claims pro se in light of the

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complexity of the legal issues involved. Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir.

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2015). The need for discovery does not necessarily qualify the issues involved in a case as

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“complex.” Wilborn v. Escalderon, 789 F.2d 1328. 1331 (9th Cir. 1986). Moreover, mere

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difficulty in articulating one’s claims pro se is not necessarily sufficient to require the appointment

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of counsel. Id.
The key issues remaining in this case are straightforward. This court’s summary judgment

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rulings disposed of all of Ms. Hiramanek’s ADA claims. See Dkt. No. 546, 570. Plaintiffs’ racial

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discrimination claim (which Ms. Hiramanek shares with Mr. Hiramanek) relates to plaintiffs’

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allegation that defendant Miller once refused to let plaintiffs use a courthouse bathroom because of

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their race. See Dkt. No. 94-1 ¶¶ 795-96. The proof that Mr. Hiramanek and Ms. Hiramanek will

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offer in support of their race discrimination claim will likely be identical. The papers that Ms.

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Hiramanek has submitted to date regarding the ADA claims suggest that she should have no

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difficulty articulating the basis for the relatively simple racial discrimination claim set for trial.

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This case is thus distinguishable from Reed v. Illinois, in which a district court declined to dismiss

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Mr. Hiramanek apparently does not request the appointment of counsel for himself.
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5:13-cv-00228-RMW
ORDER DENYING MOT. TO APPOINT COUNSEL & SERVE COMPLAINT ON U.S. ATTORNEY GENERAL

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an ADA complaint that arose when a state court did not appoint counsel for a plaintiff whose

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“nervous system disorder resulted in involuntary jerky movements, impaired her speech, [caused]

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anxiety, contortions characterized as aggression, inability to recall and/or articulate words,

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grunting noises, screaming, and otherwise [made her] appear[ ] out of order.” Reed v. Illinois, 119

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F.Supp.3d 879, 881 (N.D. Ill. 2015). Ms. Hiramanek’s disabilities do not appear to be so severe

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that she would be unable to present evidence at trial, and, to the extent that she asserts that her

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disabilities will interfere with her ability to present evidence, the court is willing to make

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reasonable accommodations to mitigate any hardship. See Palmer, 560 F.3d at 970.
Plaintiffs’ motion acknowledges that likelihood of success on the merits is a factor that

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courts consider in determining whether to appoint counsel, but Ms. Hiramanek did not even

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United States District Court
Northern District of California

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attempt to explain why she expects to succeed on the merits of her claims. Dkt. No. 500 at 6-7.

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The court also notes that while plaintiffs’ racial discrimination claim survived review under 28

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U.S.C. § 1915(e)(2), plaintiffs have attempted to assert 48 claims since the start of this litigation,

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all but five of which were stricken or dismissed, and one of which was adjudicated in favor of

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defendants. See, e.g., Dkt. Nos. 94-1, 19, 98, 546, 570. This factor thus weighs against the

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appointment of counsel.4
The court concludes that appointment of counsel is not warranted at this time. The court

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will discuss the best way to move forward with the parties at the next case management

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conference.

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Much of the contact with the state court employees that gave rise to Roda and Adil Hiramanek’s
allegations in the instant case arose from the dissolution of the marriage of Adil Hiramanek and
his ex-wife Kamal and the court-ordered sale of a family home purchased during the marriage,
where Roda also lived. See, e.g., Dkt. No. 94-1 ¶ 45 (describing Roda Hiramanek’s involvement in
Santa Clara County Superior Court case numbers 1-09-CV-147737, 1-10-CV-163310, and
1-09-FL-149682). In 2010, the Superior Court declared Adil Hiramanek a vexatious litigant in
case number 1-09-FL-149682. See Dkt. No. 94-1 ¶¶ 547, 898-99. After plaintiffs filed the instant
case, Mr. Hiramanek filed two additional federal lawsuits alleging 13 claims against 15
government employees and entities. See Pierce et al v. Cantil-Sakauye et al., Case No.
3:13-cv-01295-JSW; Hiramanek v. California Judicial Council et al., Case No.
5:15-cv-04377-RMW. Mr. Hiramanek also unsuccessfully attempted to remove a state criminal
case against him to federal court. The People of the State of California v. Hiramanek, Case No.
5:14-cv-04640-BLF.
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5:13-cv-00228-RMW
ORDER DENYING MOT. TO APPOINT COUNSEL & SERVE COMPLAINT ON U.S. ATTORNEY GENERAL

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II.

MOTION TO SERVE THE U.S. DEPARTMENT OF JUSTICE
Plaintiffs argue that the Attorney General of the United States is authorized under 28

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C.F.R. Part 35, Subpart F, to determine whether public entities comply with Title II of the ADA.
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As there are no remaining ADA claims in this case, plaintiffs’ request is denied as moot.
Even if plaintiffs were to move for reconsideration of the court’s summary judgement
orders on their ADA claims, the court would not find plaintiffs’ arguments for serving the

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Department of Justice persuasive. It is true that the Department of Justice may accept complaints
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under the ADA, but plaintiffs cite no authority requiring a U.S. District Court to serve a civil
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complaint under Title II on the Department of Justice. See, e.g., 28 C.F.R. § 35.170(c) (“An

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individual may file a complaint with any agency that he or she believes to be the appropriate
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agency designated under subpart G of this part.”); see also 28 C.F.R. § 35.190 (listing designated
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United States District Court
Northern District of California

agencies referenced in Section 35.170(c)). Moreover, none of the authorities plaintiffs cite,
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including 42 U.S.C. § 12117, § 12188, and 15 U.S.C. 1125, suggest that the U.S. Attorney General
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is a real party in interest in claims under Title II. None of the cited statutes even relate to Title II.
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Moreover, plaintiffs’ citations to 28 U.S.C. § 2403 and cases that rely on that statute are

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inappropriate because defendant here did not claim that the ADA was unconstitutional.
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Accordingly, plaintiffs’ request to serve their complaint on the U.S. Attorney General is

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denied with prejudice.
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IT IS SO ORDERED.
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Dated: April 8, 2016
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______________________________________
Ronald M. Whyte
United States District Judge

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5:13-cv-00228-RMW
ORDER DENYING MOT. TO APPOINT COUNSEL & SERVE COMPLAINT ON U.S. ATTORNEY GENERAL