Bernstein v. United States Department of Housing & Urban Development

Background

Magistrate Judge Jacqueline Scott Corley recommended dismissing the case without leave to amend for failure to state a claim. Mary Bernstein objected, arguing that she and Elizabeth Tigano should receive appointed counsel because exceptional circumstances existed. She also challenged the recommendation’s conclusions that judicial immunity barred claims against Alameda County Superior Court judges and that the plaintiffs had not stated disability-discrimination claims under the Americans with Disabilities Act against the U.S. Department of Housing and Urban Development (HUD) and the California Department of Fair Employment and Housing (DFEH).

Appointment of Counsel

The court agreed that appointment of counsel was not warranted. Under the cited standard, exceptional circumstances require considering both the likelihood that the plaintiffs will succeed and their ability to explain their claims without a lawyer given the complexity of the legal issues. The court concluded that the central problem was not the plaintiffs’ ability to write or conduct legal research, but their failure to allege a claim for which the law allows relief. The plaintiffs had received three chances to amend their complaint, multiple filing extensions totaling six months, specific explanations of deficiencies, and a recommendation to seek free assistance from the Legal Help Center.

Judicial Immunity

The court agreed that the claim against the Alameda County Superior Court judge who denied Bernstein’s request for appointed counsel was barred by judicial immunity. It reasoned that ruling on a request for counsel was a normal judicial function, even though Bernstein argued that access to counsel was a reasonable disability accommodation and that denying it was an administrative act.

Claims Against HUD and DFEH

The court rejected Bernstein’s argument that the plaintiffs’ race explained the recommendation concerning their disability-discrimination claims. The magistrate judge had separately found that the plaintiffs’ claim under 42 U.S.C. § 1981 failed because they described themselves as white women and therefore did not plead membership in a racial minority. But the disability-discrimination claims against HUD and DFEH failed for a different reason: the plaintiffs alleged that those agencies ignored complaints and did not help stop harassment at their housing complexes, but did not allege that the agencies took those actions because of the plaintiffs’ disabilities. The plaintiffs repeated the same arguments in their third amended complaint despite having been alerted to this deficiency.

Disposition

Judge William H. Orrick adopted Magistrate Judge Corley’s Report and Recommendation in full. The court dismissed the action without leave to amend.