1 2 4 5 6 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || JUAN FERNANDO MEJIA BANEGAS, Case No.: 3:18-cv-2670-GPC-RBM 12 Plaintiff,

REPORT & RECOMMENDATION

13 || OF U.S. MAGISTRATE JUDGE RE: (1) DISSOLVING ORDER TO SHOW

ON DOE #1, CBP: JOHN DOE #2, CAUSE ; (2) GRANTING PLAINTIFF

15 ° ADDITIONAL TIME TO FILE AND 16 Defendants.| SERVE AMENDED COMPLAINT;

AND (3) DIRECTING CLERK OF

17 COURT TO ISSUE CIVIL 18 RIGHTS/BIVENS COMPLAINT TO

PLAINTIFF

19 0 AND 21 ORDER DENYING PLAINTIFF’S 29 MOTION FOR APPOINTMENT OF

COUNSEL

23 □ A [Docs. 32, 33, 36 | 25 26 I. INTRODUCTION 27 On November 23, 2018, Plaintiff Juan Fernando Mejia Banegas (“Plaintiff”) filed a 28 rights complaint against two John Doe defendants (collectively “Doe Defendants”)

1 ||allegedly employed by U.S. Customs and Border Protection (“CBP”). (Doc. 1.) He is 2 || proceeding pro se and in forma pauperis (““IFP”). (Docs. 1, 4.) On January 31, 2020, after 3 || Plaintiff identified the names of the two CBP officer defendants, the undersigned directed 4 || Plaintiff to file a first amended complaint (“FAC”) substituting the Doe Defendants for the 5 ||now-identified officers so that proper service could be effectuated. (Doc. 31.) The 6 ||undersigned granted Plaintiff sixty (60) days to file an FAC, which elapsed on March 30, 7 ||2020. Ud.) Plaintiff did not timely file an FAC. On June 29, 2020, District Judge Gonzalo 8 ||P. Curiel ordered Plaintiff to show cause (“OSC”) why the case should not be dismissed

_ 9 || for failure to prosecute. (Doc. 32.) Plaintiff filed a response to the OSC and subsequently 10 || filed a motion for appointment of counsel. (Docs. 33, 36.) Both filings raise the same 11 |/issue: Plaintiff requests the Court to appoint counsel to represent him. (Docs. 33, 36.) 12 Plaintiff's motion for appointment of counsel was referred to the undersigned. After 13 thorough review of the motion for appointment of counsel, the undersigned does not find 14 |l}exceptional circumstances exist to justify appointment of counsel at this time. 15 || Accordingly, Plaintiffs motion is DENIED, WITHOUT PREJUDICE. The issues 16 || presented in Plaintiffs response to the OSC was also referred to the undersigned for Report 17 Recommendation. See 28 U.S.C. § 636(b)(1)(B); CivLR 72.1(c). After a thorough 18 review of the pleadings and Plaintiff's response to the OSC, the undersigned respectfully 19 |} RECOMMENDS the order to show cause (Doc. 32) be DISSOLVED, and the Court 20 || GRANT Plaintiff an additional sixty (60) days to file an amended complaint. To the extent 21 || Plaintiff files an amended complaint, the undersigned further RECOMMENDS that the 22 ||Court GRANT Plaintiff sixty (60) days to serve the named defendants pursuant to Fed. R. 23 ||Civ. P. Rule 4(m), which shall run from the date the amended complaint is filed. 24 Yl. BACKGROUND & PROCEDURAL HISTORY 25 This Order incorporates the background and procedural history as set forth in the 26 ||Court’s September 4, 2019 and January 31, 2020 orders. (Docs. 22, 31.) 27 28

1 A. Complaint’s Allegations Against Doe Defendants 2 Plaintiffs complaint alleges he is a “citizen and national of Honduras” who is 3 ||seeking asylum in the United States. (Doc. 1 at 3.) On May 28, 2018, Plaintiff allegedly 4 || left a shopping center in Calexico, California, when he was suddenly “punched in the face 5 || with a closed fist” by Doe Defendant No. 1. (Ud. at 4.) Plaintiff then fell to the ground, 6 ||and Doe Defendant No. | identified himself as a CBP officer. (/d.) Doe Defendant No. 1 7 ||told Plaintiff to lie still on the ground, and Plaintiff complied. Ud.) Doe Defendant No. 1 8 handcuffed Plaintiff. (Ud. at 5.) Plaintiff allegedly complied with all orders and 9 ||offered no resistance. (/d.) After a few minutes, Doe Defendant No. 2 allegedly 10 ||“appear[ed] at the scene,” and without provocation by Plaintiff, grabbed the back of 11 ||Plaintiff's head and slammed it into the concrete, causing Plaintiff to lose consciousness. 12 13 After an unknown amount of time, Plaintiff regained consciousness and found 14 ||himself inside of a CBP vehicle. Ud.) The Doe Defendants began questioning Plaintiff 15 ||inside the vehicle, and Plaintiff admitted he was in the United States “without lawful 16 ||/status.” (d.) The Doe Defendants then transferred Plaintiff to a CBP detention facility. 17 18 While at the CBP detention facility, CBP staff noticed Plaintiff required medical 19 treatment and subsequently transported Plaintiff to an emergency room at a local hospital. 20 ||(/d. at 6.) Plaintiff was diagnosed with a nasal fracture and prescribed narcotics for pain 21 |icontrol. Ud.) After being released back to CBP, Plaintiff “returned to the same hospital a 22 days later for . . . surgical drainage of [a] hematoma that resulted from the assault.” 23 24 Plaintiff alleges the Doe Defendants violated his Fourth Amendment rights by using 25 ||excessive force during his arrest. (Ud. at 7-8.) Additionally, Plaintiff alleges the Doe 26 ||Defendants acted with deliberate indifference to his serious medical needs while 27 ||Defendants questioned Plaintiff. (/d. at 9-10.) 28 |{///

l At the time the Court issued its order granting Plaintiff's IFP Motion, the Court 2 || cautioned Plaintiff that he “must identify [the Doe Defendants] by name, and amend his 3 ||Complaint to substitute these individuals as proper parties in place of the Does before the 4 || United States Marshal will be able to execute service upon them.” (Doc. 4 at 5, n. 2 5 (citations omitted).) 6 B. Attempt to Effectuate Service of Process Upon Identified Officers 7 On May 14, 2019, Plaintiff filed a Notice of Filing of Service Packet alleging the 8 ||identities of the Doe Defendants as Michael Mansfield (“Mansfield”) and Jose Meza 9 ||(“Meza”). (Doc. 15.) However, Plaintiff alleges he “is not exactly certain as to which 10 || Defendant is [Doe Defendant No. 1] and [Doe Defendant No. 2]... [and] will therefore 11 leave the Caption as Doe Defendants at this time, expecting to clarify which Defendant is 12 || which, early in discovery.” (/d. at 1.) 13 Plaintiff attempted to serve Mansfield and Meza before amending his complaint and 14 ||naming these individuals as defendants. In August and September 2019, Plaintiff filed 15 ||summonses addressed to Meza and Mansfield at 1150 Birch Street, Calexico, CA 92231, 16 |/all of which were returned unexecuted stating “[b]usiness is closed down permanently.”! 17 ||(Docs. 16-17, 20-21.) On September 4, 2019, Judge Curiel granted Plaintiff up through 18 |{December 4, 2019 to serve Defendants and directed the Clerk of Court to re-issue 19 |)summonses to Plaintiff's complaint and address U.S. Marshal Form 285 to Mansfield and 20 ||Meza. (Docs. 11, 22.) On October 10, 2019, Plaintiff filed the summonses addressed to 21 ||Mansfield and Meza, which were returned executed. (Docs. 26-27.) However, the U.S. 22 || Attorney contends service is ineffective, because neither individual is a named defendant. 23 ||(Doc. 29.) Nonetheless, the U.S. Attorney states, “[i]fand when [Mansfield] and/or [Mesa] 24 25 ' According to the CBP website, the Calexico station is listed with an address of 1150 26 |! Birch Street, Calexico, CA 92231. See https://www.cbp.gov/border-security/along-us- 27 || borders/border-patrol-sectors/el-centro-sector-california/calexico-station (last visited Sept. 21, 2020). However, that location is permanently closed and has been relocated to 536 Barbara Worth Road, Calexico, CA 92231.

1 || [are] name[d] as defendants in this case, Plaintiff's designated process server is invited to 2 ||contact [the U.S. Attorney] to facilitate service of the summons and complaint.”? (dd. at 3 4 As stated above, the undersigned directed Plaintiff to file an FAC on or before March 5 2020, substituting the identified officers for the Doe Defendants. (Doc. 31.) Plaintiff 6 || did not file an FAC as directed. Judge Curiel ordered Plaintiff to show cause why the case 7 ||should not be dismissed for failure to prosecute. (Doc. 32.) 8 || Il. RESPONSE TO OSC & MOTION FOR APPOINTMENT OF COUNSEL 9 Plaintiff's response to the OSC contends this case should not be dismissed because 10 is mentally incompetent and requires the assistance of counsel to effectively litigate his 11 ||case. (Doc. 33 at 1-4.) 12 Plaintiff has been in immigration custody since May 28, 2018. (Ud. at 1.) He has 13 been detained at the Eloy Detention Center in Eloy, Arizona since November 2019. (/d.) 14 || Plaintiff alleges a detainee at another facility assisted him with drafting the initial 15 ||complaint, but he “has no one at Eloy to help him write an amended Complaint, conduct 16 || discovery, file pleadings, or try the case.” (/d. at 2.) However, Plaintiff received assistance 17 || in drafting his response to the OSC and motion for appointment of counsel. (/d.) 18 Plaintiff attached an order from Immigration Court where the court found Plaintiff 19 || “mentally incompetent to represent himself,” and ordered a qualified representative to be 20 || provided to Plaintiff through the Executive Office for Immigration Review’s National 21 || Qualified Representative Program. (/d. at Ex. B, p. 10.) Plaintiff also attached medical 22 ||records indicating Plaintiff suffers from schizophrenia and psychosis. (/d. at Ex. A, pp. 7- 23 ||9.) Plaintiff also alleges he has a petition for review pending before the Ninth Circuit, 24 || where the Court appointed counsel for him under the Court’s pro bono program. (/d. at 3.) 25 26 27 28 oe U.S. Attorney spells Mesa’s name differently than Plaintiff. (Compare Doc. 15 with oc. 29.)

1 Plaintiff also alleges Eloy Detention Center has a coronavirus outbreak, which makes it 2 || difficult to research, file pleadings, and litigate this case. (Id.) 3 Plaintiffs motion for appointment of counsel incorporates by reference the 4 || foregoing allegations contained in his response to the OSC. (Doc. 36.) He alleges he “does 5 have a basic understanding of court proceedings or the roles of a judge and a lawyer.” 6 at 2.) He has not been able to secure volunteer or retained counsel. (Jd. at 3.) He 7 || alleges, “[uJnless counsel is provided, [he] will simply be unable to investigate or litigate 8 case.” (/d.) Plaintiff contends that his case has merit, as evidenced by the medical 9 ||records documenting his injuries. (/d.) 10 IV. DISCUSSION 11 A. Motion for Appointment of Counsel 12 i. Applicable Law 13 Generally, a person has no right to court-appointed counsel in civil actions. Palmer 14 |lv. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding no abuse of discretion in denying 15 appointment of counsel in civil rights action, citing Storseth v. Spellman, 654 F.2d 1349, 16 |} 1353 (9th Cir. 1981)). However, pursuant to 28 U.S.C. § 1915(e)(1), a court may appoint 17 ||counsel for indigent civil litigants under “exceptional circumstances.” Palmer, 560 F.3d 18 || at 970 (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. 19 denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005)). In determining whether 20 ||‘“exceptional circumstances” exist, the court must consider “the likelihood of success on 21 ||the merits as well as the ability of the petitioner to articulate his claims pro se in light of 22 complexity of the legal issues involved.” Palmer, 560 F.3d at 970 (citing Weygandt v. 23 || Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 24 Cir. 1991). Neither of these considerations is dispositive but instead must be viewed 25 ||together. Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 26 || (9th Cir. 1986)). 27 Only “rarely” will a federal court find a case to be so complex that it is appropriate 28 || to appoint counsel for a civil litigant who faces no loss of liberty in the controversy at hand.

1 Dotson v. Doctor, No. 1:14-CV-00093-LJO-SKO, 2014 U.S. Dist. LEXIS 72791, at 2 ||*1 n.1 (B.D. Cal. May 27, 2014) (“[c]ounsel is appointed in civil cases only rarely, if 3 |lexceptional circumstances exist”); United States v. Melluzzo, No. CV-09-8197-PCT- 4 ||MHM, 2010 U.S. Dist. LEXIS 53053, at *3 (D. Ariz. May 3, 2010); see also 5 Schwartzmiller v. Roberts, No. 93-1276-FR, 1994 U.S. Dist. LEXIS 1620, at *3 n.1 (D. 6 Feb. 11, 1994). This includes civil rights litigation involving Fourth Amendment 7 ||excessive force allegations brought pursuant to 28 U.S.C. § 1331 and Bivens v. Six 8 || Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See 9 || Marquez v. Scott, No. 13-CV-2507-BEN-BLM, 2014 U.S. Dist. LEXIS 37684, at *6 (S.D. 10 || Cal. Mar. 19, 2014) (denying motion for appointment of counsel in excessive force action, 11 |/in part, due to relatively straightforward nature of the Fourth Amendment excessive force 12 || allegations). 13 il. No Exceptional Circumstances Exist to Justify Appointment of Counsel 14 Here, there are no “exceptional circumstances” to justify appointment of counsel at 15 time. Litigation is in its early stages. The two identified CBP officers have yet to be 16 || substituted as defendants, much less file a responsive pleading. (Docs. 1, 31, 32.) At the 17 initial pleading stage, it is difficult to determine Plaintiffs likelihood of success on the 18 || merits ofhis claims. To the extent this case proceeds beyond summary judgment, the Court 19 || will be in a better position to make such determination. 20 As in Marquez, Plaintiff's Fourth Amendment allegations are not sufficiently 21 ||complex to warrant appointment of counsel. See Marquez, 2014 U.S. Dist. LEXIS 37684, 22 *6. Although Plaintiff claims he lacks an understanding of legal proceedings and suffers 23 ||from a mental illness, Plaintiff demonstrated literacy and an ability to communicate 24 ||through pleadings and motions to sufficiently articulate his claims pro se. (Docs. 1, 33, 25 ||36); see Palmer, 560 F.3d at 970 (affirming denial of appointment of counsel where a 26 || plaintiff demonstrates ability to effectively present case). In all of Plaintiff's filings to date, 27 ||he demonstrates an ability to articulate essential facts to support his claims and/or 28 ||arguments. (Docs. 1, 33, 36.) For example, Plaintiff's response to the OSC attaches as

1 exhibits medical records and an immigration court order to support his allegations that he 2 ||lacks mental capacity. (Doc. 33 at 6-10.) Additionally, Plaintiff's complaint survived the 3 || initial screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A, which further evidences 4 ||his ability to articulate his claims pro se. 5 In considering the nature of Plaintiff's claims together with Plaintiffs ability to 6 || articulate the same, the undersigned does not find exceptional circumstances exist to justify 7 || appointment of counsel at this time. If this case proceeds beyond summary judgment, the 8 Court may consider appointment of trial counsel. 9 B. Plaintiff's Response to OSC 10 Notably, Plaintiff's response to the OSC was timely filed and explained why he had 11 timely filed an FAC in compliance with the undersigned’s January 31, 2020 order. 12 ||(Doc. 33.) Plaintiff is detained and proceeding pro se, and he alleges he lacks legal 13 |i knowledge to competently represent himself. (Ud. at 1-2.) Plaintiff further alleges the 14 |}ongoing COVID-19 pandemic makes it difficult for him to litigate. Ud. at 3.) Plaintiff 15 || requests that the Court not dismiss his case. (/d.at 4.) He further requests the Court appoint 16 || counsel and grant him an additional sixty days to file an FAC. (Ud) To the extent Plaintiffs 17 response to the OSC is construed as a motion for appointment of counsel, such request is 18 || denied. See supra pp. 6-7. 19 Properly naming all parties in a complaint ensures timely service of the summons 20 || and complaint pursuant to Fed. R. Civ. P. 4(m), which requires service to be accomplished 21 || within ninety days after the complaint is filed. If service is not accomplished within ninety 22 || days, the Court must dismiss the action without prejudice or order that service be made 23 || within a specified time. See Fed. R. Civ. P. 4(m). If plaintiff establishes good cause for 24 the failure to effectuate timely service, the Court is required to extend the time for service. 25 The Court has broad discretion to extend the time for service and may consider factors 26 || such as actual notice of a lawsuit, prejudice to the defendant or eventual service. See Efaw 27 Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (citation and internal quotation marks 28 || omitted).

l Although Plaintiffhas yet to name Mansfield and Meza as defendants in an amended 2 ||complaint, it appears these officers are on notice of the allegations in the complaint such 3 they will not suffer any prejudice from a delay in service. See supra pp.4-5; (Docs. 4 26-27, 29); see Efaw, 473 F.3d at 1041. Given the ongoing COVID-19 pandemic, 5 ||PlaintifPs pro se circumstances, and the CBP officer defendants’ actual notice of the 6 || lawsuit, good cause exists to extend the time for Plaintiff to file and serve an amended 7 ||complaint pursuant to Fed. R. Civ. P. 4(m). See Eldridge v. Block, 832 F.2d 1132, 1136 8 Cir. 1987) (stating “strict time limits . .. ought not to be insisted upon where restraints 9 |/resulting from a pro se prisoner plaintiff's incarceration prevent timely compliance with 10 ||court deadlines.”) (internal quotations and citations omitted). As such, the undersigned 11 ||recommends that the OSC be dissolved and Plaintiff be granted additional time to file and 12 |/serve an amended complaint. 13 V. CONCLUSION 14 For the foregoing reasons, Plaintiff's motion for appointment of counsel is 15 || DENIED, WITHOUT PREJUDICE. 16 Additionally, the undersigned submits a Report and Recommendation as to the June 17 2020 Order to Show Cause to United States District Judge Gonzalo P. Curiel under 28 18 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(c) of the United States District Court for 19 Southern District of California. The undersigned respectfully RECOMMENDS that: 20 1. The order to show cause (Doc. 32) be DISSOLVED; 21 2. The Court GRANT Plaintiff an additional sixty (60) days to file an amended 22 ||complaint substituting the Doe Defendants for the individual defendants identified by 23 || Plaintiff; 24 3. To the extent Plaintiff files an amended complaint, the Court GRANT Plaintiff 25 || sixty (60) days to serve the named defendants pursuant to Rule 4(m), Fed. R. Civ. P., which 26 shall begin running from the date the amended complaint is filed; 27 28

1 4. The Court DIRECT the Clerk of Court to issue a civil rights/Bivens form 2 ||complaint to Plaintiff, along with a copy of Plaintiffs initial complaint (Doc. 1), to his 3 address of record; and 4 5. The Court NOTIFY the Clerk of Court that, upon Plaintiff's filing of an amended 5 |j}complaint, the Court will issue separate orders directing the Clerk of Court to issue a 6 ||summons as to Plaintiff's amended complaint and directing the U.S. Marshals Service to 7 |{contact the U.S. Attorney’s Office to effectuate service of the summons and amended 8 || complaint consistent with the U.S. Attorney’s agreement. (See Doc. 29.) 9 As to the Report and Recommendation, any party may file written objections with 10 Court and serve a copy on all parties on or before October 6, 2020. The document 11 ||should be captioned “Objections to Report and Recommendation.” The parties are advised 12 failure to file objections within the specified time may waive the right to appeal the 13 || District Court’s Order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 14 || v. Vist, 951 F.2d 1153, 1156 (9th Cir. 1991). 15 IT ISSO ORDERED. 16 || DATE: September 22, 2020 □ 17 (ft 44 Be Minh dn Mailers, Uth pyr 18 C 2 ON. RUTH BER 4 i MO TENEGRO

UNITED STATES MAGISTRATE JUDGE

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