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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r- 1 FT LEO i7M4Rif /jo gj j8 2 3 4 m 5 -4. «si» 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BART D. KIMBER, Case No.: 3:16-cv-01472-BEN-AGS Plaintiff, 12 13 v. 14 ORDER: TRACY GRANT et al., (1) DENYING MOTION FOR PRELIMN ARY INJUCTION; Defendants. 15 (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL; and 16 17 (3) DENYING MOTION TO AMEND COMPLAINT 18 19 20 Pending before the Court are the Motions for Injunctive Relief, Appointment of 21 Counsel, and to Amend the Complaint filed by Plaintiff Bart Kimber. (Docket Nos. 27, 22 37, 39.) The Court finds the Motion suitable for determination on the papers without oral 23 argument, pursuant to Civil Local Rule 7.1.d.l. For the reasons set forth below, each 24 Motion is DENIED. 25 BACKGROUND 26 Plaintiff filed a Complaint against Defendants (the United States of America and 27 ten individual federal employees or officers), containing twelve claims for relief related 28 to his allegations of invasion of privacy, wrongful termination, employment l 3:16-cv-01472-BEN-AGS CA 1 discrimination, Civil Rights violations, negligent infliction of emotional distress, “reverse 2 sexual discrimination,” and Americans with Disabilities Act (“ADA”) violations. 3 (Docket No. 1.) Plaintiffs 61-page Complaint alleges that, in June 2006, he was wrongfully 4 5 terminated from his employment as a firefighter with the Camp Pendleton Fire 6 Department. (Compl.) According to Plaintiff, beginning in June 2003, after he declined 7 Defendant Tracy Grant’s invitation to engage in sexual relations, she and Defendant 8 Dean King created a hostile work environment for him. {Id.) Plaintiff more generally 9 alleges that all of the Defendants’ acted in some way to conspire to invade his privacy, 10 engage in employment discrimination, violate his Civil Rights, and violate the ADA, 11 resulting in his wrongful termination and ongoing emotional distress. {Id.) 12 13 DISCUSSION A. Motion for Injunctive Relief Plaintiff filed a Motion for Injunctive Relief alleging Defendant Jalynn Peterson is 14 15 presently “denying Plaintiff the right to work by concealing, losing, or destroying his 16 Official Personal File (OPF).” (Docket No. 27 at 2.) He seeks an order: (a) requiring 17 Defendant Jalynn Peterson to either produce Plaintiffs Official Personnel File or admit 18 that she concealed, lost or destroyed it; (b) payment for lost wages, benefits, creditable 19 service, and interest; and (c) “Sanction Punitive Actions against Defendants to Halt their 20 Discriminatory practices, and award restitution to Plaintiff to make him whole [sic].” {Id. 21 at 4.) 22 “A plaintiff seeking a preliminary injunction must establish that he is likely to 23 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 24 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 25 the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 26 “The first factor under Winter is the most important—likely success on the merits.” 27 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citing Aamer v. Obama, 742 28 F.3d 1023, 1038 (D.C. Cir. 2014) (“We begin with the first and most important factor: 2 3:16-cv-01472-BEN-AGS n. 1 whether petitioners have established a likelihood of success on the merits.”)). If a 2 plaintiff has failed to show a likelihood of success on the merits, the court need not 3 consider the other three Winter elements. Id. (citing Ass'n des Eleveurs de Canards et 4 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 5 6 action, the relief is treated as a “mandatory injunction,” which requires the plaintiff to 7 “establish that the law and facts clearly favor her position not simply that she is likely to 8 succeed.” Id. (citing Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 9 F.3d 873, 879 (9th Cir.2009)). The Ninth Circuit has cautioned that mandatory 10 injunctions go “well beyond simply maintaining the status quo pendente lite [and] is 11 particularly disfavored.” Id. (citing Stanley v. Univ. ofS. Cal., 13 F.3d 1313, 1320 (9th 12 Cir. 1994)). Plaintiff has failed to establish a likelihood of success on the merits because his 13 14 Motion is solely based on conclusory allegations. He provides no legal authority to 15 support his request, and thus falls well below the requirement to establish that the law and 16 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 17 18 Plaintiff has also failed to establish a likelihood of irreparable harm. “The basis of 19 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 21 (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 23 No. 27.) Thus, he has not demonstrated that he would suffer irreparable harm without the 24 injunction because monetary compensation may be awarded if he prevails on his claims. Accordingly, Plaintiffs Motion for Preliminary Injunction is DENIED. 25 26 III 27 III 28 III 3 3:16-cv-01472-BEN-AGS 1 B. Motion for Appointment of Counsel 1 2 Plaintiff also moves for the appointment of counsel, asserting that he has a 3 meritorious claim, but is unable find an attorney to represent him “on terms that [he] can 4 afford.” (Docket No. 37 at 1.) Plaintiff was previously represented by an attorney, but he 5 indicates his former attorney withdrew after Plaintiff was unable to pay his fees. (Id. at 6 9.) He also contacted five other attorneys or firms, three of which were not retained 7 because he could not afford to pay the deposit; the other two were not retained because 8 they did not specialize in his type of claims. (Id. at 3, 9.) 9 Courts have discretion to appoint counsel for indigent civil litigants upon a 10 showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 11 Cir. 1991); Bradshaw v. Zoological Soc. ofSan Diego, 662 F.2d 1301, 1318 (9th Cir. 12 1981). “A finding of exceptional circumstances requires an evaluation of both the 13 likelihood of success on the merits and the ability of the petitioner to articulate his claims 14 pro se in light of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 15 (9th Cir. 1991) (internal citations omitted); see also Bradshaw, 662 F.2d at 1318. 16 “Neither of these factors is dispositive and both must be viewed together before reaching 17 a decision.” Terrell, 935 F.2d at 1017 (internal citations omitted). 18 III 19 20 21 22 23 24 25 26 27 i 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). 28 4 3:16-cv-01472-BEN-AGS ft At this time, the Court cannot say there is any likelihood of success on the merits. 1 2 First, Plaintiffs Complaint acknowledges his claims may be barred by the statute of 3 limitations as it requests the Court “allow equitable tolling of the statute of limitations.” 4 (Compl. at 12.) Second, although Plaintiff marked that his Equal Opportunity 5 Commission Right-to-Sue Letter did not show the Commission found “no reasonable 6 cause” to believe the allegations made in the charge were true, he did not attach the letter 7 to his request for appointment of counsel. Moreover, Plaintiff fails to demonstrate an 8 inability to represent himself beyond the ordinary burdens encountered by plaintiffs 9 representing themselves pro se. Therefore, the Court finds that the exceptional circumstances required for the 10 11 appointment of counsel are not present. Plaintiffs Motion is DENIED. 12 C. 13 14 15 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 16 pleading as a matter of course, Rule 15(a)(2) of the Federal Rules of Civil Procedure 17 provides that: “a party may amend its pleading only with the opposing party's written 18 consent or the court's leave.” Fed. R. Civ. P. 15(a). Leave to amend under Rule 15(a)(2) 19 should be “freely give[n]... when justice so requires.” Fed. R. Civ. P. 15(a)(2). 20 Courts consider “undue delay, bad faith, dilatory motive, repeated failure to cure 21 deficiencies by previous amendments, undue prejudice to the opposing party, and futility 22 of the proposed amendment” in deciding whether justice requires granting leave to amend 23 under Rule 15. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 24 1989) (citing Foman v. Davis, 370 U.S. 178, 182 (1962)). Although each factor may 25 warrant consideration, “prejudice to the opposing party ... carries the greatest weight.” 26 Eminence Capital, 316 F.3d at 1052. 27 28 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 5 3:16-cv-01472-BEN-AGS 1 No. 39 at 3.) Additionally, Plaintiffs proposed FAC fails to satisfy Rule 8(a)(2) of the 2 Federal Rules of Civil Procedure, which requires “a short and plain statement of the 3 claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). Facially, 4 Plaintiffs proposed 119-page FAC is nearly twice as long as the operative 61-page 5 Complaint, not including the additional 219 pages of supporting exhibits.2 (Compare 6 Docket Nos. 1, 39.) Substantively, Plaintiffs Complaint contains various accusations 7 and legal conclusions spanning multiple time frames, and it is unclear whether he has 8 stated a claim for relief. Fed. R. Civ. Proc. 8(a)(2). Therefore, he has not met Rule 9 15(a)(2)’s requirement to obtain consent to amendment by the opposing parties, or 10 demonstrated why justice requires the Court to grant him leave. Fed. R. Civ. P. 15(a)(2). 11 Accordingly, Plaintiffs Motion to Amend Complaint is DENIED. 12 CONCLUSION Plaintiffs Motions for Preliminary Injunction, Appointment of Counsel, and to 13 14 Amend Complaint are DENIED. Defendants shall file their answer, or otherwise 15 respond to Plaintiffs Complaint (docket no. 1) within twenty-one (21) days of this 16 Order. 17 IT IS SO ORDERED. 18 19 20 DATED: March ,2017 HONvJS-OGER T. BENITEZ United States District Judge 21 22 23 24 25 26 27 28 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. 6 3:16-cv-01472-BEN-AGS

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