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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIO ZAPATA, Case No. 2:22-CV-04584-MEMF(MRWx)

12 Plaintiff, ORDER DENYING MOTION FOR

APPOINTMENT OF COUNSEL [ECF NO.

13 v. 11] 14 DELTA AIR LINES, INC., et al., 15 Defendants. 16 17 18 19 20 21 On September 11, 2022, Plaintiff Mario Zapata, appearing pro se, filed a Motion for 22 Appointment of Counsel. ECF No. 11. For the reasons set forth below, the Court DENIES the 23 Motion.1 24 25 / / / 26 / / / 27 1 I. Background 2 A. Factual Background2 3 Plaintiff Mario Zapata (“Zapata”) is an individual with a disability that limits use of his left 4 hand and arm. ECF No. 11 (“Motion” or “Mot.”) at 3. He also suffers from advanced multiple 5 sclerosis, disseminated enlarged prostate, urinary incontinence, and chronic ulcers, among other 6 conditions. Id. These conditions require him to use an electric wheelchair. Id. 7 Zapata flew from Los Angeles to New York City on a flight operated by Defendant Delta 8 Airlines, Inc. (“Delta”). Compl. at 4. On the aircraft, there was no aisle for passengers in a 9 wheelchair to gain access to the lavatory. Id. at 9. 10 Upon arrival to John F. Kennedy Airport, the able-bodied passengers deplaned and Zapata 11 was left on the aircraft for more than one hour. Id. at 4. When the attendants arrived with the 12 wheelchair, they wheeled Zapata in a manner that caused him to fall to floor. Id. at 7. Before hitting 13 the floor, a male attendant grabbed Zapata under the arms, causing him to injure his shoulder. Id. 14 B. Procedural Background 15 On July 3, 2022, Zapata filed this action against Defendants Delta Airlines, Inc., Global 16 Baggage Expediter, Inc., Global Aircraft Dispatch, Inc., and Pax Assist, Inc Compl. at 2. Zapata 17 alleges two causes of action against Defendants: (1) violation of the Americans with Disabilities Act 18 (“ADA”), 28 U.S.C. § 12101, et seq.; and (2) violation of the Rehabilitation Act of 1973 19 (“Rehabilitation Act”), 29 U.S.C. § 701, et. seq. See generally Compl. 20 On September 11, 2022, Zapata filed the instant Motion for Appointment of Counsel. ECF 21 No. 11 (“Motion” or “Mot.”). Defendants have not submitted an Opposition to this Motion. On 22 November 1, 2022, the Court deemed this matter appropriate for resolution without oral argument 23 and vacated the hearing set for November 10, 2022. ECF No. 17; see C.D. Cal. L.R. 7-15. 24 II. Applicable Law 25 28 U.S.C. § 1915(e) permits a court to “request an attorney to represent any person unable to 26 afford counsel,” and the Ninth Circuit has interpreted this provision to confer on a district court the 27 1 discretion to designate counsel to represent an indigent civil litigant. See Wilborn v. Escalderon, 789 2 F.2d 1328, 1331 (9th Cir. 1986). The Ninth Circuit recognizes that counsel may be designated only 3 in “exceptional circumstances.” Id. A finding of exceptional circumstances requires an evaluation of 4 both “the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims 5 pro se in light of the complexity of the legal issues involved.” Id. (quoting Weygandt v. Look, 718 6 F.2d 952, 954 (9th Cir. 1983)). Although the factors must be evaluated together before reaching a 7 decision, neither is dispositive. Id. 8 III. Discussion 9 A. Zapata has not established a likelihood of success on the merits. 10 In determining whether to grant a request for counsel, the court must first evaluate Zapata’s 11 likelihood of success on the merits. Wilborn, 789 F.2d at 1331. Zapata has not offered any argument, 12 nor any additional evidence, showing that he has a likelihood of success on the merits. However, the 13 Court shall independently assess the merits of Zapata’s complaint below. 14 To establish a substantial likelihood of success on the merits, the Court must find “a fair 15 chance of success” on each of Zapata’s causes of action. In re Focus Media Inc., 387 F.3d 1077, 16 1086 (9th Cir. 2004). Zapata alleges two causes of action against the various Defendants for: (1) 17 violation of the Americans with Disabilities Act, 28 U.S.C. § 12101, et seq.; and (2) violation of the 18 Rehabilitation Act of 1973, 29 U.S.C. § 701, et. seq. 19 i. Zapata fails to show a likelihood of success on his ADA claim. 20 Title II of the ADA states that: “no qualified individual with a disability shall, by reason of 21 such disability, be excluded from participation in or be denied the benefits of the services, programs, 22 or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 23 12132. The elements of an ADA claim are: 24 (1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity’s services, 25 programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entity’s services, programs, or activities, or was 26 otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability. 27 Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). 1 To determine whether Zapata has made a strong showing of his likelihood of success, the 2 Court considers whether Zapata has been able to adduce evidence that he had a disability, he was 3 qualified to receive the benefit of Defendants’ service, that Zapata was excluded from these benefits, 4 and that he was excluded because of his disability. Although the evidence he has adduced might tend 5 to support his ADA claim that he has a disability and was denied proper accommodations by 6 Defendants, Zapata has not yet been able to adduce sufficient evidence to make the requisite strong 7 showing with respect to Defendants’ alleged failures and that they excluded him by reason of his 8 disability. Zapata described his physical ailments in detail (see ECF No. 30 ¶¶ 5–10), but he has not 9 provided evidence that shows a strong likelihood of proving that Defendants violated the ADA as 10 alleged. 11 ii. Zapata fails to show a likelihood of success on his Rehabilitation Act claim. 12 The elements of a Rehabilitation Act claim are: “(1) [Plaintiff] is an individual with a 13 disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the 14 program solely by reason of his disability; and (4) the program receives federal financial assistance.” 15 Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh’g (Oct. 16 11, 2001). 17 To determine whether Zapata has made a strong showing of his likelihood of success, the 18 Court considers whether Zapata has been able to adduce evidence that he had a disability, he was 19 qualified to receive the benefit of Defendants’ service, that he was excluded because of his disability 20 and that Defendant is program that receives federal financial assistance. Although the evidence he 21 has adduced might tend to support his Rehabilitation Act claim that he has a disability and that 22 Defendants receive federal funding, Zapata has not yet been able to adduce sufficient evidence to 23 make the requisite strong showing with respect to Defendants’ alleged failures and that they qualify 24 as a program that receives federal financial assistance. As above, Zapata has described his ailments 25 (see ECF No. 30 ¶¶ 5–10), but has not provided evidence showing a strong likelihood of proving 26 violates of the law by Defendants. 27 / / / B. Zapata has not demonstrated an inability to articulate his claims based on the 1 complexity of the issues involved. 2 In addition, Zapata has not made any argument as to his inability to articulate his claims pro 3 se. In the absence of such argument, the Court shall independently assess the complexity of the 4 issues raised below. 5 While the Court recognizes the challenges of self-representation, “[m]ost actions require 6 development of further facts during litigation and a pro se litigant will seldom be in a position to 7 investigate easily the facts necessary to support the case. If all that was required to establish 8 successfully the complexity of the relevant issues was a demonstration of the need for development 9 of further facts, practically all cases would involve complex legal issues.” Wilborn, 789 F.2d at 10 1331. Given that Zapata’s suit is premised upon a single interaction with Defendants and their staff, 11 the complexity of the legal issues involved is not sufficient to require designation of counsel. 12 C. The Ninth Circuit has not considered a plaintiff’s health condition in determining whether to appoint counsel. 13 Zapata also argues that he will have difficulty articulating his claims pro se because he “is 14 not an able-bodied person, and is not capable for himself, due to his severe disabilities from a 15 myriad of serious medical maladies, some of which became aggravated when the plaintiff suffered 16 injuries due to the illegal actions of defendants.” Mot. at 3–4. 17 In determining whether to grant request for counsel, the Ninth Circuit has only considered 18 whether a plaintiff will have difficulty articulating his claims “in light of the complexity of the legal 19 issues involved.” Wilborn, 789 F.2d at 1331 (emphasis added). The parties have not identified, and 20 the Court is not aware of, any cases where the Ninth Circuit has held that a plaintiff’s health 21 condition should impact the determination. Furthermore, Zapata has not proffered sufficient 22 evidence to substantiate his injuries. In order to assess Zapata’s health condition, the Court would, at 23 the very least, require further documentation from a medical professional. 24

IV. Resources for Self-Represented Parties

25 As a result of this Order, Zapata will remain pro se, i.e., without legal representation. He 26 nonetheless is required to comply with Court orders, the Local Rules, and the Federal Rules of Civil 27 Procedure. See C.D. Cal. L.R. 83-2.2.3. The Local Rules are available on the Court’s website, 1 The Court cannot provide legal advice to any party, including pro se litigants. There is a fre 2 || “Pro Se Clinic” that can provide information and guidance about many aspects of civil litigation in 3 || this Court. 4 e Public Counsel runs a free Federal Pro Se Clinic where pro se litigants can get 5 information and guidance. The Clinic is located at the Roybal Federal Building and 6 Courthouse, 255 East Temple Street, Los Angeles, CA 90012 (note that the clinic 7 may not be open for in-person appointments during the pandemic). Pro se litigants 8 must call or submit an on-line application to request services as follows: on-line 9 applications can be submitted at http://prose.cacd.uscourts.gov/los-angeles, or call 10 (213) 385-2977, ext. 270. 11 e Public Counsel also has extensive resources for pro se litigants at its website located 12 at https://publiccounsel.org/services/federal-court/. 13 e The Court is also informed that the LA Law Library, located across the street from 14 the First Street Courthouse at 301 W. First Street, Los Angeles, CA 90012, also has 15 extensive resources for pro se litigants. The LA Law Library can be reached via 16 email at reference@lalawlibrary.org, or via telephone at (213) 785-2513. 17 V. Conclusion 18 In light of the foregoing, the Court hereby ORDERS as follows: 19 1. The Motion for a Court Appointed Expert is DENIED WITHOUT PREJUDICE. Zapata 20 may renew this Motion later if and when he is able to submit further evidence. 21 22 Dated: July 25, 2023 _. 24 MAAMI EWUSI-MENSAH FRIMPONG 25 United States District Judge 26 27 28