Kimber v. Grant et al

Filing 40

ORDER: (1) Denying 27 Motion for Preliminary Injunction; (2) Denying 37 Motion to Appoint Counsel; and (3) Denying 39 Motion to Amend Complaint. Defendants shall file their answer, or otherwise respond to Plaintiff's Complaint (docket no. 1) within twenty-one (21) days of this Order. Signed by Judge Roger T. Benitez on 3/3/2017. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BART D. KIMBER,

Case No.: 3:16-cv-01472-BEN-AGS
Plaintiff,

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v.

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ORDER:

TRACY GRANT et al.,

(1) DENYING MOTION FOR
PRELIMN ARY INJUCTION;
Defendants.

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(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL; and

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(3) DENYING MOTION TO AMEND
COMPLAINT

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Pending before the Court are the Motions for Injunctive Relief, Appointment of

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Counsel, and to Amend the Complaint filed by Plaintiff Bart Kimber. (Docket Nos. 27,

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37, 39.) The Court finds the Motion suitable for determination on the papers without oral

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argument, pursuant to Civil Local Rule 7.1.d.l. For the reasons set forth below, each

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Motion is DENIED.

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BACKGROUND

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Plaintiff filed a Complaint against Defendants (the United States of America and

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ten individual federal employees or officers), containing twelve claims for relief related

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to his allegations of invasion of privacy, wrongful termination, employment
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discrimination, Civil Rights violations, negligent infliction of emotional distress, “reverse

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sexual discrimination,” and Americans with Disabilities Act (“ADA”) violations.

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(Docket No. 1.)
Plaintiffs 61-page Complaint alleges that, in June 2006, he was wrongfully

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terminated from his employment as a firefighter with the Camp Pendleton Fire

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Department. (Compl.) According to Plaintiff, beginning in June 2003, after he declined

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Defendant Tracy Grant’s invitation to engage in sexual relations, she and Defendant

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Dean King created a hostile work environment for him. {Id.) Plaintiff more generally

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alleges that all of the Defendants’ acted in some way to conspire to invade his privacy,

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engage in employment discrimination, violate his Civil Rights, and violate the ADA,

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resulting in his wrongful termination and ongoing emotional distress. {Id.)

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DISCUSSION
A.

Motion for Injunctive Relief
Plaintiff filed a Motion for Injunctive Relief alleging Defendant Jalynn Peterson is

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presently “denying Plaintiff the right to work by concealing, losing, or destroying his

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Official Personal File (OPF).” (Docket No. 27 at 2.) He seeks an order: (a) requiring

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Defendant Jalynn Peterson to either produce Plaintiffs Official Personnel File or admit

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that she concealed, lost or destroyed it; (b) payment for lost wages, benefits, creditable

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service, and interest; and (c) “Sanction Punitive Actions against Defendants to Halt their

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Discriminatory practices, and award restitution to Plaintiff to make him whole [sic].” {Id.

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at 4.)

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“A plaintiff seeking a preliminary injunction must establish that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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“The first factor under Winter is the most important—likely success on the merits.”

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Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citing Aamer v. Obama, 742

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F.3d 1023, 1038 (D.C. Cir. 2014) (“We begin with the first and most important factor:
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3:16-cv-01472-BEN-AGS

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whether petitioners have established a likelihood of success on the merits.”)). If a

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plaintiff has failed to show a likelihood of success on the merits, the court need not

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consider the other three Winter elements. Id. (citing Ass'n des Eleveurs de Canards et

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d'Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.2013) (internal citation omitted)).
When a plaintiff seeks a court order requiring another party to take affirmative

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action, the relief is treated as a “mandatory injunction,” which requires the plaintiff to

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“establish that the law and facts clearly favor her position not simply that she is likely to

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succeed.” Id. (citing Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 879 (9th Cir.2009)). The Ninth Circuit has cautioned that mandatory

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injunctions go “well beyond simply maintaining the status quo pendente lite [and] is

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particularly disfavored.” Id. (citing Stanley v. Univ. ofS. Cal., 13 F.3d 1313, 1320 (9th

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Cir. 1994)).
Plaintiff has failed to establish a likelihood of success on the merits because his

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14 Motion is solely based on conclusory allegations. He provides no legal authority to
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support his request, and thus falls well below the requirement to establish that the law and

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facts clearly favor his position. Garcia, 786 F.3d at 740 (internal citation omitted).
Moreover, although the Court need not consider the other factors, it notes that

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Plaintiff has also failed to establish a likelihood of irreparable harm. “The basis of

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injunctive relief in the federal courts is irreparable harm and inadequacy of legal

20 remedies.” L.A. Mem 7 Coliseum Comm ’n v. Nat’l Football League, 634 F.2d 1197, 1202
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(9th Cir. 1980). In effect, Plaintiff seeks monetary damages and production of his

22 personnel file, the absence of which is preventing him from commencing work. (Docket
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No. 27.) Thus, he has not demonstrated that he would suffer irreparable harm without the

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injunction because monetary compensation may be awarded if he prevails on his claims.
Accordingly, Plaintiffs Motion for Preliminary Injunction is DENIED.

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III

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III
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B.

Motion for Appointment of Counsel 1

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Plaintiff also moves for the appointment of counsel, asserting that he has a

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meritorious claim, but is unable find an attorney to represent him “on terms that [he] can

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afford.” (Docket No. 37 at 1.) Plaintiff was previously represented by an attorney, but he

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indicates his former attorney withdrew after Plaintiff was unable to pay his fees. (Id. at

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9.) He also contacted five other attorneys or firms, three of which were not retained

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because he could not afford to pay the deposit; the other two were not retained because

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they did not specialize in his type of claims. (Id. at 3, 9.)

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Courts have discretion to appoint counsel for indigent civil litigants upon a

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showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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Cir. 1991); Bradshaw v. Zoological Soc. ofSan Diego, 662 F.2d 1301, 1318 (9th Cir.

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1981). “A finding of exceptional circumstances requires an evaluation of both the

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likelihood of success on the merits and the ability of the petitioner to articulate his claims

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pro se in light of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017

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(9th Cir. 1991) (internal citations omitted); see also Bradshaw, 662 F.2d at 1318.

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“Neither of these factors is dispositive and both must be viewed together before reaching

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a decision.” Terrell, 935 F.2d at 1017 (internal citations omitted).

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III

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Plaintiff technically filed two separate requests for appointment of counsel, one
pursuant to 28 U.S.C. § 1915(e)(1), and one pursuant to 42 U.S.C. 2000e 5(f)(1).
(Docket No. 73.) However, because the Court’s determination is based on essentially the
same analysis, the Court treats the two motions as a single motion. See Terrell v. Brewer,
935F.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 petitioner
to articulate his claims pro se in light of the complexity of the legal issues involved.”);
Bradshaw v. Zoological Soc. ofSan Diego, 662 F.2d 1301,1318 (9th Cir. 1981)
(appointment of counsel pursuant to the 1964 Civil Rights Act requires a court to assess
“(1) the plaintiffs financial resources, (2) the efforts made by the plaintiff to secure
counsel, and (3) whether the plaintiffs claim has merit.”) (internal citations omitted).

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At this time, the Court cannot say there is any likelihood of success on the merits.

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First, Plaintiffs Complaint acknowledges his claims may be barred by the statute of

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limitations as it requests the Court “allow equitable tolling of the statute of limitations.”

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(Compl. at 12.) Second, although Plaintiff marked that his Equal Opportunity

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Commission Right-to-Sue Letter did not show the Commission found “no reasonable

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cause” to believe the allegations made in the charge were true, he did not attach the letter

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to his request for appointment of counsel. Moreover, Plaintiff fails to demonstrate an

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inability to represent himself beyond the ordinary burdens encountered by plaintiffs

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representing themselves pro se.
Therefore, the Court finds that the exceptional circumstances required for the

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appointment of counsel are not present. Plaintiffs Motion is DENIED.

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C.

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Motion to Amend Complaint
Finally, Plaintiff moves to amend his complaint, attaching his proposed First

Amended Complaint (“FAC”) and supporting exhibits. (Docket No. 39.)
Before trial, and after the time has elapsed for which a party may amend its

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consent or the court's leave.” Fed. R. Civ. P. 15(a). Leave to amend under Rule 15(a)(2)

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should be “freely give[n]... when justice so requires.” Fed. R. Civ. P. 15(a)(2).

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Courts consider “undue delay, bad faith, dilatory motive, repeated failure to cure

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deficiencies by previous amendments, undue prejudice to the opposing party, and futility

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of the proposed amendment” in deciding whether justice requires granting leave to amend

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under Rule 15. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir.

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1989) (citing Foman v. Davis, 370 U.S. 178, 182 (1962)). Although each factor may

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warrant consideration, “prejudice to the opposing party ... carries the greatest weight.”

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Plaintiffs Motion to Amend lacks any explanation as to why he should be granted
leave. Instead, in a single paragraph, Plaintiff reiterates his claims for reliefs. (Docket
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No. 39 at 3.) Additionally, Plaintiffs proposed FAC fails to satisfy Rule 8(a)(2) of the

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Federal Rules of Civil Procedure, which requires “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). Facially,

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Plaintiffs proposed 119-page FAC is nearly twice as long as the operative 61-page

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Complaint, not including the additional 219 pages of supporting exhibits.2 (Compare

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Docket Nos. 1, 39.) Substantively, Plaintiffs Complaint contains various accusations

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and legal conclusions spanning multiple time frames, and it is unclear whether he has

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stated a claim for relief. Fed. R. Civ. Proc. 8(a)(2). Therefore, he has not met Rule

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15(a)(2)’s requirement to obtain consent to amendment by the opposing parties, or

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demonstrated why justice requires the Court to grant him leave. Fed. R. Civ. P. 15(a)(2).

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Accordingly, Plaintiffs Motion to Amend Complaint is DENIED.

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CONCLUSION
Plaintiffs Motions for Preliminary Injunction, Appointment of Counsel, and to

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Amend Complaint are DENIED. Defendants shall file their answer, or otherwise

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respond to Plaintiffs Complaint (docket no. 1) within twenty-one (21) days of this

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Order.

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IT IS SO ORDERED.

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DATED: March

,2017
HONvJS-OGER T. BENITEZ
United States District Judge

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2 The Court further notes Plaintiff did not provide “a version of the proposed amended
pleading that shows—through redlining, underlining, strikeouts, or other similarly
effective typographic methods—how the proposed amended pleading differs from the
operative pleading,” as required by Civil Local Rule 15.l.b.
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