Russo v. County of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 TONINO RUSSO, Case No.: 18cv1837-MMA (MDD) 11 ORDER DENYING PLAINTIFF’S 12 Plaintiff, MOTION TO APPOINT COUNSEL v. 13 [Doc. No. 30] COUNTY OF SAN DIEGO, et al., 14 15 Defendants. 16 17 On November 7, 2019, Plaintiff Tonino Russo (“Plaintiff”), proceeding pro se, 18 filed a motion to appoint pro bono counsel. See Doc. No. 30. The Court ordered Plaintiff 19 to file supplemental information regarding whether he is indigent and whether 20 “exceptional circumstances” warrant the appointment of pro bono counsel in this case. 21 See Doc. No. 31. Plaintiff filed his supplemental brief on December 2, 2019, and his 22 affidavit in support of his pending motion on December 6, 2019. See Doc. Nos. 33, 34. 23 Defendants County of San Diego, Lisa Ramirez, and Hugh Davidson (“Defendants”) 24 filed a brief in opposition to Plaintiff’s motion to appoint counsel. See Doc. No. 36. The 25 Court found the matter suitable for determination on the papers and without oral 26 argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 37. For the reasons set 27 forth below, the Court DENIES Plaintiff’s motion to appoint counsel. 28 / / / 1 BACKGROUND 2 This action arises out of events occurring on August 18 and 19, 2017. On August 3 18, 2017, sheriff deputies responded to Plaintiff’s residence after receiving a report of a 4 disturbance inside the home. Russo is the father of three young children and was residing 5 with his fiancée, the mother of his children, at the time. 6 Plaintiff alleges that Defendant Ramirez informed Plaintiff that he was under arrest 7 and “yanked one of Russo’s arms behind his back.” FAC ¶ 14. Due to his size, 8 Defendant Ramirez “struggled to pull both of Russo’s arms all the way behind his back” 9 as Plaintiff weighed over 300 pounds and “lacked sufficient flexibility in his upper 10 body.” Id. Plaintiff felt pain in his shoulders as a result. Defendant Ramirez “then 11 clamped down the handcuffs until there was no space between the metal and Russo’s 12 skin, causing immediate pain to Russo’s wrists.” Id. at ¶ 15. Defendant Ramirez and 13 another deputy attempted to put Plaintiff into the back of the patrol car. Plaintiff alleges 14 he “ended up in a semi-prone position in the back seat with his right shoulder pinned in 15 the area where a passenger’s legs would normally be positioned.” Id. ¶ 16. Plaintiff 16 experienced “excruciating pain” in his shoulder and “numbness” in his hands and wrists. 17 Id. ¶ 17. Plaintiff went to the hospital for medical treatment. After receiving medical 18 treatment, Plaintiff was taken to jail and booked into custody. 19 The following day, Plaintiff was released from custody. Plaintiff alleges his 20 fiancée’s father invited him to the house to pick up personal items, including his wallet 21 and phone. Plaintiff drove to the house with his father but could not locate his wallet and 22 phone. As Plaintiff and his father were leaving the neighborhood, they were pulled over 23 by sheriff deputies, including Defendant Davidson. The deputies ordered Plaintiff out of 24 the car. Defendant Davidson “accused Russo of violating a ‘stay away’ order that was 25 entered the previous day.” Id. ¶ 23. Plaintiff claims he did not receive notice of the 26 order. Defendant Davidson placed Plaintiff under arrest, “clamping down handcuffs to 27 the point of causing substantial pain on the preexisting wounds.” Id. ¶ 24. Plaintiff 28 informed the deputies that the handcuffs were also causing extreme pain in his shoulders. 1 Plaintiff alleges Defendant Davidson then pushed Plaintiff into the police car with 2 substantial force, causing pain and injury to Plaintiff’s neck. The deputies booked 3 Plaintiff into jail without medical attention. Upon his release, Plaintiff sought medical 4 treatment, which is ongoing. 5 Based on these allegations, Plaintiff asserts claims against Defendants for: (1) 6 excessive force in violation of his Fourth Amendment rights under 42 U.S.C. § 1983; (2) 7 interference with his rights under California Civil Code Section § 52.1; and (3) 8 negligence. See Doc. No. 18 (hereinafter “FAC”). Plaintiff claims that as a result of the 9 deputies’ conduct, he has suffered serious injury to his wrists, shoulders, and neck. 10 PROCEDURAL HISTORY 11 Dispositive pretrial motions, including motions for summary judgment and 12 motions addressing Daubert issues, were due on August 23, 2019. No dispositive 13 motions were filed. A trial date has not been set in this case. On August 27, 2019, 14 Plaintiff’s attorneys filed a motion to withdraw from his representation. See Doc. No. 23. 15 The Court granted Plaintiff’s motion. See Doc. No. 25. Plaintiff filed the instant motion 16 on November 7, 2019, claiming he cannot afford counsel. See Doc. No. 30. Defendants 17 oppose Plaintiff’s motion. 18 DISCUSSION 19 As set forth in the Court’s November 12, 2019 Order, while there is no 20 constitutional right to counsel in a civil action, the Court may under “exceptional 21 circumstances” exercise its discretion to request an attorney represent an indigent civil 22 litigant pursuant to 28 U.S.C. § 1915(e)(1). Palmer v. Valdez, 560 F.3d 965, 970 (9th 23 Cir. 2009). When determining whether “exceptional circumstances” exist, courts 24 consider: (1) the likelihood of success on the merits; and (2) the ability of the Plaintiff to 25 articulate his claims pro se in light of the complexity of the legal issues involved. See id. 26 “Neither of these considerations is dispositive and instead must be viewed together.” Id. 27 With respect to the likelihood of success on the merits, Plaintiff points out that no 28 motion for summary judgment was filed in this case. See Doc. No. 33 at 2. Plaintiff 1 further claims that prior to the incident, he was very active in sports, but he currently has 2 “extensive medical issues[.]” Id. at 3. Lastly, Plaintiff contends that “officers have 3 contradicted their own testimony under oath.” Id. Plaintiff’s arguments are insufficient 4 to demonstrate that he has a likelihood of success on the merits. First, while Plaintiff’s 5 likelihood of success on the merits increased when no motion for summary judgment was 6 filed, Defendants contend that they did not file any dispositive motions “given the 7 significant factual disputes created by Plaintiff’s provocative deposition testimony[.]” 8 Doc. No. 36 at 2; see also Heilman v. Silva, No. 13-cv-2984 JLS (AGS), 2017 WL 9 822164, at *3 (S.D. Cal. Mar. 2, 2017) (noting that the court’s prior finding that the 10 plaintiff’s likelihood of success on the merits increased when the court denied in part the 11 defendants’ motion for summary judgment “does not obligate the Court to appoint new 12 counsel.”). Second, Plaintiff cites to no evidence of his extensive medical issues in 13 support of his contentions and fails to explain how the officers’ contradicted testimony 14 supports his likelihood of success at trial. Rather, Defendants maintain that the causal 15 link between Plaintiff’s claimed injuries and the underlying events was “annihilated by 16 the medical evidence,” which was “likely a factor in his former attorneys’ ultimate 17 decision to exit this litigation.” Id. at 4. Thus, in the absence of any evidentiary record 18 before the Court, the Court finds that Plaintiff has not demonstrated a likelihood of 19 success on the merits. 20 Regarding Plaintiff’s ability to articulate his claims pro se in light of the 21 complexity of this case, Plaintiff states that he worries about presenting information 22 concerning his health issues and expert testimony “which are crucial in this case.” Doc. 23 No. 33 at 3. Plaintiff also claims that he does not know how to present information that 24 the officers contradicted their own testimony. See id. While the Court is sympathetic to 25 Plaintiff’s unfamiliarity with trial procedures, the appointment of counsel requires more 26 than simply demonstrating the “difficulties which any litigant would have in proceeding 27 pro se.” Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The jury will 28 ultimately be tasked with deciding a relatively straightforward legal question: was 1 Plaintiff subjected to excessive force during his arrests? Several courts have found 2 similar claims insufficiently complex to justify the appointment of pro bono counsel. See 3 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (affirming the district court’s 4 denial of trial counsel where the prisoner brought an Eighth Amendment claim against a 5 correctional officer who “purposely closed a food-slot door on [plaintiff’s] hand” because 6 the issues raised were “not of substantial complexity” to warrant the appointment of 7 discretionary counsel); Courson v. Chochran, No. 08-cv-871 JAH (WMc), 2009 WL 8 10725719, at *1 (S.D. Cal. Nov. 2, 2009) (“Plaintiff’s claims of physical abuse by a San 9 Diego Sheriff’s Deputy are not sufficiently ‘complex’ or unique to warrant appointment 10 of counsel.”). Further, as Defendants note, discovery was completed while Plaintiff had 11 counsel, there are no dispositive motions for Plaintiff to respond to, and Plaintiff has been 12 able to sufficiently articulate his arguments in the instant motion and in his supplemental 13 brief. Accordingly, exceptional circumstances do not warrant the appointment of counsel 14 in this case. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004).1 15 CONCLUSION 16 Based on the foregoing, the Court DENIES Plaintiff’s motion for appointment of 17 counsel. Accordingly, the Court ORDERS as follows: 18  Within ten (10) calendar days of the date of this Order, the parties must 19 jointly contact the assigned magistrate judge to schedule a mandatory 20 settlement conference at the convenience of the assigned magistrate judge. 21  Further, within fourteen (14) calendar days of scheduling the mandatory 22 settlement conference with the assigned magistrate judge, the parties 23 must: 24  Meet and confer in person to ensure that Plaintiff has access to, or 25 copies of, all discovery materials; and 26 27 1 Because the Court finds that exceptional circumstances do not warrant the appointment of 28 1 e File on the docket a joint proposed pretrial scheduling order. 2 Upon review of the proposed pretrial scheduling order, the Court will issue a final 3 || pretrial scheduling order in due course. 4 5 IT IS SO ORDERED. 6 7 Dated: February 12, 2020 9 HON. MICHAEL M. ANELLO 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28