Luster 167766 v. Pima, County of

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Marcus Lee Luster, No. CV-22-00519-TUC-RM 10 Plaintiff, ORDER v. County of Pima, et al., 13 Respondents.

15 Plaintiff Marcus Lee Luster brought this pro se civil rights action under 42 U.S.C. § 1983, asserting Fourteenth Amendment violations for inadequate medical care, failure to protect, and excessive force arising from events that allegedly occurred while Plaintiff was a pretrial detainee at the Pima County Adult Detention Center. (Doc. 1.) The Court ordered Defendants Perko, Reidy, Pina, Krause, and Thomas to answer the Complaint.

20 (Doc. 9.) The Court later temporarily stayed this action as to Defendant Krause under the Servicemembers Civil Relief Act (Doc. 28), and dismissed Defendant Thomas for failure to timely effect service (Doc. 93). On September 27, 2024, the Court denied Motions for Summary Judgment filed by Plaintiff and Defendants Reidy and Pina. (Doc. 111.)

24 Defendants Reidy and Pina filed an interlocutory appeal. (Doc. 113.)

25 The following Motions are pending before the Court: Plaintiff’s Motion to Charge Defendant Pina and Lt. Black with 18 U.S.C. § 241 Conspiracy Against Rights (Doc. 96); Plaintiff’s Motion for Appointment of Counsel (Doc. 99); Plaintiff’s Motion to Supplement (Doc. 103); Plaintiff’s Motion to Compel Disclosure (Doc. 106); Plaintiff’s Motion for Interrogatories (Doc. 107); and Plaintiff’s Motion to Inform Court of No Settlement Date Being Given (Doc. 115).

3 I. Divestment of Jurisdiction 4 Defendants Reidy and Pina have filed an interlocutory appeal of this Court’s denial of qualified immunity and any inextricably intertwined rulings in the Court’s September 27, 2024 Order. (Doc. 113.) In their Notice of Appeal, Defendants assert that, in the absence of a certification by this Court that their claim of qualified immunity is frivolous or has been waived, this Court is automatically divested of jurisdiction to proceed with trial. (Id.) 10 “[T]he filing of a notice of interlocutory appeal divests the district court of jurisdiction over the particular issues involved in that appeal.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001). “[A] proper appeal from a denial of qualified immunity automatically divests the district court of jurisdiction to require the appealing defendants to appear for trial,” unless the district court certifies in writing “that the defendants’ claim of qualified immunity is frivolous or has been waived.” Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992).

17 The Court does not find that Defendants Reidy and Pina’s claim of qualified immunity is frivolous or has been waived, and therefore Defendants’ interlocutory appeal divests this Court of jurisdiction to proceed to trial on Plaintiff’s claims against Reidy and Pina. However, it is not clear whether this action should be stayed in its entirety, or whether litigation of the claims against Defendants Perko and Krause should proceed during the pendency of Defendants Reidy and Pina’s interlocutory appeal. The Court will require briefing from the parties on that issue.

24 In its September 27, 2024 Order, the Court referred this action to Magistrate Judge Maria S. Aguilera for the limited purpose of conducting a settlement conference, and directed the parties to contact Magistrate Judge Aguilera’s chambers to schedule the settlement conference. (Doc. 111 at 23.) In his Motion to Inform Court of No Settlement Date Being Given, Plaintiff avers that he has not been informed of any settlement conference. (Doc. 115.) Given the interlocutory appeal filed by Defendants Reidy and Pina, the Court will postpone ordering the parties to participate in a settlement conference and will vacate the limited referral to Magistrate Judge Aguilera. Plaintiff’s Motion to Inform Court of No Settlement Date Being Given will be denied to the extent it requests any relief.

6 The Court finds that Defendants Reidy and Pina’s interlocutory appeal divests it of jurisdiction over Plaintiff’s Motion to Charge Defendant Pina and Lt. Black with 18 8 U.S.C. § 241 Conspiracy Against Rights and Plaintiff’s Motion to Compel Disclosure. In the former Motion, Plaintiff asks the Court to criminally charge Defendant Pina and Lieutenant Black with conspiracy to violate Plaintiff’s rights based on allegedly false declarations submitted by Pina and Black in support of the Motions for Summary Judgment addressed in the Court’s September 27, 2024 Order. (Doc. 96.) In the Motion to Compel Disclosure, Plaintiff requests discovery of evidence related to issues resolved in the September 27, 2024 Order. (Doc. 106.) Because these Motions relate to issues involved in Defendants Reidy and Pina’s interlocutory appeal of the September 27, 2024 Order, the Court will deny the Motions for lack of jurisdiction. See City of Los Angeles, Harbor Div., 254 F.3d at 886; see also Fed. R. Civ. P. 62.1(a)(2) (court may deny a motion that it lacks authority to grant due to a pending appeal).

19 Furthermore, even if the Court were not divested of jurisdiction over the Motions, the Motions fail on the merits. The Court has no authority to initiate criminal prosecutions and therefore no authority to grant Plaintiff’s Motion to Charge Defendant Pina and Lt. Black. See United States v. Edmonson, 792 F.2d 1492, 1497 (9th Cir. 1986) (noting that the Attorney General and United States Attorneys have exclusive discretion to decide whether to prosecute). With respect to the Motion to Compel, Plaintiff has not shown that Defendants failed to respond to any timely served interrogatories or that they failed to disclose inmate names as ordered by the Court. (See Doc. 93.) Furthermore, Defendants aver that they resent a link to the requested video evidence on September 12, 2024, and that Plaintiff may view the video footage by contacting CO III Jacob Monsibais. (Doc. 110.) Plaintiff has not contested or responded to that averment.

2 The other pending Motions in this case involve issues distinct from those involved in Defendants Reidy and Pina’s interlocutory appeal, and therefore it is not clear that this Court has been divested of jurisdiction over the other Motions. However, as discussed below, the Motions fail on the merits.

6 II. Plaintiff’s Motion for Appointment of Counsel 7 In his Motion for Appointment of Counsel, Plaintiff argues that the appointment of counsel is warranted because this case turns on credibility issues, and Plaintiff’s mental illness creates unique challenges to his ability to litigate this case pro se. (Doc.

10 99.) Defendants oppose Plaintiff’s request for the appointment of counsel and ask the Court to sanction Plaintiff for filing this Motion. (Doc. 102.)

12 There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request an attorney to represent any person unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 16 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination concerning exceptional circumstances requires an evaluation of the likelihood of success on the merits and the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Id. 21 While Defendants are correct that this Court has already denied prior requests for the appointment of counsel made by Plaintiff in this case, it did so without prejudice to re-filing. (See, e.g., Doc. 28 at 5; Doc. 93 at 3.) Furthermore, by arguing that his mental health problems impede his ability to litigate this case and that the case turns on credibility issues that must be resolved at trial, Plaintiff has reasonably addressed the relevant factors affecting whether the appointment of counsel is warranted. Accordingly, the Court denies Defendants’ request to sanction Plaintiff for filing the Motion for Appointment of Counsel. However, the Court agrees with Defendants that Plaintiff’s Motion includes inappropriate personal attacks on Defendants’ counsel. For example, in the Motion, Plaintiff states that Defendants’ counsel has “proven to be nothing more than white trash.” (Doc. 99 at 2.) The Court warns Plaintiff that sanctions may be imposed if he continues to include derogatory personal attacks in future filings.

5 The Court finds that the denial of summary judgment to Defendants Reidy and Pina is a significant development affecting the analysis of Plaintiff’s success on the merits of the claims against Reidy and Pina. Furthermore, the Court is sympathetic to the difficulties that Plaintiff’s mental health issues have on his ability to litigate this action pro se. Nevertheless, no exceptional circumstances warrant the appointment of counsel at this time. This Court is divested of jurisdiction to proceed to trial on Plaintiff’s claims against Defendants Reidy and Pina during the pendency of their interlocutory appeal.

12 The parties have not completed discovery with respect to Plaintiff’s claims against Defendants Perko and Krause, and Plaintiff’s likelihood of success on the merits of those claims is unclear at this time. Plaintiff has demonstrated an ability to litigate his claims, at least to the summary judgment stage, notwithstanding his mental health issues.

16 Accordingly, Plaintiff’s Motion for the Appointment of Counsel will be denied with leave to refile after the conclusion of Defendants Reidy and Pina’s interlocutory appeal or after resolution of any dispositive motions filed with respect to the claims against Defendants Perko and Krause.

20 III. Plaintiff’s Motion to Supplement 21 In his Motion to Supplement, Plaintiff seeks leave to file a supplemental pleading that adds new counts and defendants. (Doc. 103; Doc. 103-1.) The proposed supplemental pleading asserts constitutional violations arising from events that occurred on January 20, 2023; January 23, 2023; January 24, 2023; and from June 13, 2020, to around July 13, 2023. (Doc. 103-1.) Defendants oppose the Motion to Supplement, arguing that the deadline to amend pleadings expired long ago, and that Plaintiff’s proposed supplemental pleading concerns alleged events that are separate and distinct from those raised in the operative Complaint. (Doc. 104.)

1 Plaintiff filed the Motion to Supplement on August 9, 2024, nearly a year after expiration of the deadline for joining parties and amending pleadings. (See Doc. 35.)1 Plaintiff’s proposed supplemental pleading relates to events that occurred before the deadline for joining parties and amending pleadings, and Plaintiff offers no explanation why he failed to move to file the supplemental pleading prior to expiration of the deadline. Because Plaintiff has failed to show good cause for his delay in moving to join parties and amend his Complaint, the Motion to Supplement will be denied as untimely.

8 Furthermore, Plaintiff has not shown that supplementation is appropriate under Federal Rule of Civil Procedure 15(d). While supplementation under Rule 15(d) is favored when it would promote judicial economy, supplementation “cannot be used to introduce a separate, distinct and new cause of action.” Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (internal quotation marks omitted). Plaintiff’s proposed supplemental pleading raises claims arising from events that involved different individuals, and occurred on different dates, than the events at issue in the operative Complaint. Count 7 of the proposed supplemental pleading raises an entirely unrelated new cause of action, and Counts 4-6 involve distinct legal issues, as they appear to raise official capacity claims asserting a policy of punitive use of restraint boards. (See Doc.

18 103-1.) Accordingly, even if Plaintiff’s Motion to Supplement had been timely filed, it fails on the merits.

20 IV. Plaintiff’s Motion for Interrogatories 21 In his Motion for Interrogatories, Plaintiff asks the Court to allow him to serve interrogatories on Defendant Krause. (Doc. 107.) The Court will deny this Motion as premature because discovery has not yet commenced with respect to Plaintiff’s claims against Defendant Krause.2 If the Court determines, following the briefing ordered herein, that litigation of Plaintiff’s claims against Defendants Krause and Perko should 1 The Court extended certain Scheduling Order deadlines (Doc. 60), but it did not extend the deadline for moving to join parties or amend pleadings (Doc. 35).

27 2 As discussed above, this action was temporarily stayed as to Defendant Krause under the Servicemembers Civil Relief Act. (Doc. 28.) Defendant Krause filed an Answer on May 28, 2024 (Doc. 92), but the Court has not yet issued a scheduling order governing the claims against Krause. || proceed during the pendency of Defendants Reidy and Pina’s interlocutory appeal, the Court will issue a scheduling order governing discovery and dispositive motions with || respect to those claims.° 4 IT IS ORDERED: 5 1. Plaintiff's Motion to Charge Defendant Pina and Lt. Black with 18 U.S.C. § 6 241 Conspiracy Against Rights (Doc. 96) is denied.

7 2. Plaintiff's Motion for Appointment of Counsel (Doc. 99) is denied.

8 3. Plaintiff's Motion to Supplement (Doc. 103) is denied.

9 4. Plaintiff's Motion to Compel Disclosure (Doc. 106) is denied.

10 5. Plaintiff's Motion for Interrogatories (Doc. 107) is denied.

11 6. Plaintiff's Motion to Inform Court of No Settlement Date Being Given 12 (Doc. 115) is denied.

13 7. The limited referral to Magistrate Judge Maria S. Aguilera for purposes of 14 conducting a settlement conference (Doc. 111) is vacated.

15 8. Within fourteen (14) days, Defendants shall file a brief addressing whether 16 litigation of Plaintiff's claims against Defendants Krause and Perko should 17 proceed during the pendency of the interlocutory appeal filed by 18 Defendants Reidy and Pina. Plaintiff may file a responsive brief within 19 fourteen (14) days of service of Defendants’ brief. The parties’ briefs 20 shall be no longer than ten (10) pages each.

21 Dated this 27th day of February, 2025.

Honoraple Rosemary Mgfquez 26 United States District □□□□□□ Due to issues with service of process, Defendant Perko was not served until shortly before the close of discovery in this case. (See Docs. 60, 89.) -7-