Luster 167766 v. Pima, County of

• Court: District Court, D. Arizona
• Decided: July 25, 2023
• Docket: 4:22-cv-00519
• Status: Unknown

Opinion

1 WO 2 3 4 5 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

11 v.

12 County of Pima, et al.,

13 Defendants. 14 15 Plaintiff Marcus Lee Luster, who is confined in the Pima County Jail, initiated this 16 action by filing a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) 17 Pending before the Court are Plaintiff’s Motion to Extend Time for 18 Summons/Appointment of Counsel (Doc. 12), Plaintiff’s Motion for Appointment of 19 Counsel/Injunctive Relief (Doc. 18), Plaintiff’s Application for Entry of Default (Doc. 20 22), to which Defendants Responded (Doc. 24), and Plaintiff’s Motion for Pima County 21 and Naphcare to Provide Addresses (Doc. 27). Also before the Court is Defendants’ 22 Motion to Stay Proceedings Under Servicemembers Civil Relief Act and to Extend 23 Responsive Pleadings Deadline (Doc. 23), to which Plaintiff responded (Doc. 25), and 24 Defendant replied (Doc. 26). The Motions will be resolved as follows. 25 I. Background 26 On February 1, 2023, this Court ordered Defendants Perko, Reidy, Pina, Krause, 27 and Thomas to answer Counts One, Two, and Three of Plaintiff’s civil rights Complaint. 28 (Doc. 9 at 12.). In Count One, Plaintiff alleges Defendants Thomas, Perko, and Reidy 1 denied him adequate medical treatment in violation of the Fourteenth Amendment after a 2 fall. (Id. at 3.) Plaintiff alleges this fall occurred on August 18, 2022, after he returned to 3 jail from the hospitalization alleged in Count Two. (Id.) In Count Two, Plaintiff asserts 4 Defendant Krause violated his Fourteenth Amendment rights during an incident on 5 August 15, 2022. (Id. at 4.) Plaintiff alleges Defendant Krause refused to assist him in 6 placing a phone call to his lawyer and instead permitted Defendant to stand on a chair 7 while handcuffed to attempt to place the call. (Id. at 4-5.) Plaintiff fell, injuring his neck, 8 back, arms, and head. (Id. at 5.) He was hospitalized for two days and diagnosed with 9 right hemiparesis and hypoesthesia. (Id.) Plaintiff claims he continues to suffer extreme 10 pain daily, and Defendant Krause was deliberately indifferent to the fact that standing on 11 the chair could result in serious injury. (Id.) In Count Three, Plaintiff asserts a Fourteenth 12 Amendment excessive force claim against Defendant Pina based on a July 2022 incident 13 in which Plaintiff alleges he was wrongfully “four pointed to [a] restraint board for over 2 14 hours.” (Id. at 5.) 15 The Court’s Service Order required Plaintiff to complete and return service 16 packets and required the United States Marshal to notify Defendants of the 17 commencement of this action and request waiver of service of the summons pursuant to 18 Rule 4(d) of the Federal Rules of Civil Procedure. (Id. at 12-13.) Defendants Pina, Reidy, 19 and Krause waived service. (Docs. 19, 20, 21.) The United States Marshal was unable to 20 serve Defendants Perko and Thomas at the address provided by Plaintiff. (Docs. 13, 14.) 21 On March 20, 2023, Plaintiff filed a Motion to Extend Time for 22 Summons/Appointment of Counsel. (Doc. 12.). On April 17, 2023, he filed a Motion for 23 Appointment of Counsel/Injunctive Relief. (Doc. 18.) On May 24, 2023, Plaintiff filed a 24 Motion for Default Judgment. (Doc. 22.) On July 7, 2023, he filed a Motion for Pima 25 County and Naphcare to Provide Addresses. (Doc. 27.) 26 On May 26, 2023, Defendants Reidy, Pina, and Krause filed a Motion to Stay the 27 Case under the Servicemembers Civil Relief Act, 50 U.S.C. § 3932, and Extend 28 Responsive Pleading Deadline. (Doc. 23.) 1 II. Plaintiff’s Motion for Entry of Default Judgment 2 Plaintiff moves for a default judgment for “failure to respond to service of 3 process/summons,” and he requests compensatory, punitive, and nominal damages as to 4 all Defendants. (Doc. 22.) Defendants Reidy, Pina, and Krause responded to the Motion, 5 arguing that Plaintiff did not follow the two-step process required by Rule 55(a) of the 6 Federal Rules of Civil Procedure and that the Motion is premature. (Doc. 24.) 7 A defendant within a judicial district of the United States who waives service 8 “need not serve an answer to the complaint until 60 days after the request was sent.” Fed. 9 R. Civ. P. 4(d)(3). The docket reflects that the request for waiver of service was sent to 10 Defendants Reidy, Pina, and Krause on March 29, 2023. (Docs. 15, 16, 17.) 11 Accordingly, Defendants Reidy, Pina, and Krause had until May 30, 2023, to answer or 12 otherwise respond to Plaintiff’s Complaint.1 On May 26, 2023, Reidy, Pina, and Krause 13 filed a Motion to Stay and requested an extension of time to respond to the Complaint. 14 (Doc. 23.) Their Motion remains pending and is addressed below. Defendants Perko and 15 Thomas have not yet been served, and therefore their deadline to answer the Complaint 16 has not begun to run. 17 Because no Defendant was in default when Plaintiff filed his Motion for Default 18 Judgment, the Motion was filed prematurely. Furthermore, Plaintiff failed to follow the 19 two-step process set forth in Federal Rule of Civil Procedure 55, which requires a party to 20 request entry of default by the Clerk of Court prior to moving for default judgment. 21 Accordingly, the Court will deny Plaintiff’s Motion for Default Judgment as to all 22 Defendants. 23 . . . . 24 . . . . 25 26 1 The 60-day period expired on Sunday, May 28, 2023, and the following day was 27 Memorial Day, a legal holiday. Pursuant to Federal Rule of Civil Procedure 6(a)(1)(C), when computing time periods, “if the last day is a Saturday, Sunday, or legal holiday, the 28 period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” 1 III. Plaintiff’s Motion to Extend Time for Summons/Appointment of Counsel, 2 Motion for Appointment of Counsel/Injunctive Relief, and Motion for Pima 3 County and Naphcare to Provide Addresses 4 In his Motion to Extend Time for Summons/Appointment of Counsel, Plaintiff 5 requests an extension of time to complete service on Defendants, as well as the 6 appointment of counsel. (Doc. 12.) Plaintiff avers that prison officials have thrown his 7 mail away in the past and that he believes they are continuing to do so now to avoid 8 litigation because the docket does not reflect his return of the service packet to the Clerk 9 of Court. (Id.) In his Motion for Appointment of Counsel/Injunctive Relief, Plaintiff 10 again requests the appointment of counsel and also requests an “injunctive remedy 11 ordering Plaintiff access to legal mail and materials while on suicide watch as well as a 12 process to track Plaintiff’s mail to this Court if counsel is not assigned.” (Doc. 18.) 13 Plaintiff explains that he has been diagnosed with schizophrenia and is often placed on 14 suicide watch when his symptoms become extreme. (Id.) While on suicide watch, 15 Plaintiff claims he cannot receive mail and lacks access to legal materials and an 16 electronic tablet to file or respond to motions. (Id.) Plaintiff is particularly concerned 17 about his inability to receive time-sensitive court documents while on suicide watch. (Id.) 18 Due to his mental health and challenges on suicide watch, Plaintiff “believes the interest 19 of justice would be best served if Plaintiff was assigned legal counsel.” (Id.) Finally, 20 Plaintiff asks the Court to order Pima County to provide Defendant Perko’s last-known 21 address and to order Naphcare to provide Defendant Thomas’s last-known address. (Doc. 22 27.) 23 There is no constitutional right to the appointment of counsel in a civil case. See 24 Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In 25 proceedings in forma pauperis, the court may request an attorney to represent any person 26 unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 27 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. 28 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination concerning exceptional 1 circumstances requires an evaluation of the likelihood of success on the merits and the 2 ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal 3 issue involved. Id. “Neither of these factors is dispositive and both must be viewed 4 together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 5 1331 (9th Cir. 1986)). 6 Having considered both elements, the Court finds no exceptional circumstances 7 that would require the appointment of counsel at this time. See Wilborn, 789 F.2d at 8 1331. As an initial matter, Plaintiff does not address his likelihood of success on the 9 merits of his claims. The record at this time does not contain evidence establishing a 10 likelihood of success. Furthermore, Plaintiff’s status as an incarcerated and self- 11 represented litigant does not alone constitute an “extraordinary circumstance” warranting 12 the appointment of counsel. Plaintiff’s request for counsel appears to primarily be based 13 upon a suspicion that his mail is being withheld at the prison and a concern that Plaintiff 14 will experience difficulty litigating if placed on suicide watch. Plaintiff has not identified 15 any specific instances of mail being withheld or thrown away. Moreover, Plaintiff’s 16 concern regarding the Clerk of Court’s receipt of his service packet is unfounded, as the 17 docket reflects that the United States Marshal successfully delivered waiver of service 18 forms to Defendants Pina, Reidy, and Krause, and attempted to serve Defendants Perko 19 and Thomas at the address provided by Plaintiff. If Plaintiff is placed on suicide watch 20 and has difficulty litigating this case as a result, he may request appropriate relief, 21 including extensions of pending deadlines. The Court will deny Plaintiff’s Motions 22 without prejudice to re-filing later in these proceedings to the extent they seek the 23 appointment of counsel and injunctive relief. 24 The Court will grant Plaintiff’s request for an extension of time to serve 25 Defendants Perko and Thomas and will partially grant Plaintiff’s Motion for Pima 26 County and Naphcare to Provide Addresses. The docket reflects that service on 27 Defendants Perko and Thomas was attempted at 1750 East Benson Highway, Tucson, 28 AZ, 85714, but was unsuccessful. (Docs. 13, 14.) The remarks on the Process Receipt 1 and Return for Defendants Perko and Thomas indicate that the U.S. Marshals were 2 “unable to locate [the] address” of both Defendants. (Docs. 13, 14.) The Court confirmed 3 that the U.S. Marshal could not serve Defendants Perko and Thomas at 1750 East Benson 4 Highway because the Pima County Sheriff no longer employs Perko and Thomas. 5 To facilitate service on Defendants Perko and Thomas, the Court will require 6 defense counsel to file last-known addresses for both Defendants under seal. 7 Additionally, the Court will extend the service period by 60 days from the date of this 8 Order. 9 IV. Defendants’ Motion to Stay Proceedings Under Servicemembers’ Civil Relief 10 Act 11 Defendants Krause, Reidy, and Pina move to stay this entire case pursuant to the 12 Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. § 3932. (Docs. 23, 26.) 13 Defendants also request an extension of the deadline for Defendants Reidy, Pina, and 14 Krause to respond to the Complaint until 14 days after the Court rules on the Motion to 15 Stay or 14 days after any stay order of the case expires, whichever is later. (Id.) 16 The SCRA permits “the temporary suspension of judicial and administrative 17 proceedings and transactions that may adversely affect the civil rights of servicemembers 18 during their military service.” 50 U.S.C. § 3902(2). Under the SCRA, a defendant may 19 apply to stay a civil proceeding if the defendant is in military service and has received 20 notice of the proceedings. 50 U.S.C. § 3932(a)(1)-(2). A stay application must include: 21 (1) details “stating the manner in which current military duty requirements materially 22 affect the servicemember’s ability to appear and stating a date when the servicemember 23 will be available to appear;” and (2) documentation from “the servicemember’s 24 commanding officer stating that the servicemember’s current military duty prevents 25 appearance and that military leave is not authorized.” 50 U.S.C. § 3932(b)(2). If the 26 applicant meets these conditions, the court “shall… stay the action for a period of not less 27 than 90 days.” 50 U.S.C. § 3932(b)(1) (emphasis added). A servicemember granted a stay 28 1 “may apply for an additional stay based on continuing material [e]ffect of military duty 2 on the servicemember’s ability to appear.” 50 U.S.C. § 3932(d)(1). 3 Here, Defendant Krause is eligible to apply for a stay under the SCRA because he 4 received notice of the proceedings (Doc. 21) and was in military service when he 5 requested the stay (Doc. 23-1). Defendant Krause has provided a memorandum from his 6 commanding officer explaining that he is currently on active duty with the United States 7 Army and deployed overseas for up to 365 days from March 20, 2023. (Doc. 23-1 at 2.) 8 The memorandum confirms that Defendant Krause is currently not authorized military 9 leave. (Id.) Thus, Defendant Krause’s application satisfies the conditions of 50 U.S.C. § 10 3932(b)(2). Plaintiff concedes that Count Two, the only count against Defendant Krause, 11 should be postponed until after the completion of his military service. (Doc. 25 at 3.) The 12 Court will stay these proceedings as to Count Two and Defendant Krause. Defendant 13 Krause shall notify the Court within 30 days of his return from deployment. 14 Next, the Court turns to Defendants’ argument that these proceedings should be 15 stayed as to non-military Defendants Reidy and Pina, in addition to Krause. (Doc. 23 at 16 5.) Defendants argue that all claims should be stayed because (1) all counts concern 17 events that allegedly occurred over a short time; (2) each Defendant has “personal 18 knowledge” of their interactions with Plaintiff historically and during the time of the 19 alleged events; (3) each Defendant has “knowledge” relating to incidents alleged in each 20 count; and (4) therefore, each Defendant is a “material witness” for each count. (Id. at 5.) 21 Defendants also allege Plaintiff assaulted Defendant Krause in April 2022, and the 22 assault is relevant to inform how Defendants interacted with Plaintiff and the safety 23 protocols they followed. (Doc. 26 at 3.) In response, Plaintiff contends that “[a]t no time 24 were any of the Defendants of Counts I, II, or III present for any of the Counts in the 25 Complaint except the ones [they are] the subject of.” (Doc. 25 at 3.) 26 With court approval, a plaintiff may proceed against the servicemember’s 27 codefendants who are not in the military and are not entitled to protections under the 28 SCRA. 50 U.S.C. § 3935(b). In deciding whether to extend a stay to non-military 1 defendants, courts consider whether allowing the case to proceed would prejudice the 2 absent servicemember’s defense or that of the remaining defendants. See Jesus Juarez v. 3 Conwell, No. CV 16-07498-BRO (GJS), 2017 WL 10560627, at *4 (C.D. Cal. Feb. 22, 4 2017) (citing Johnson v. City of Philadelphia, No. 07-2966, 2007 WL 3342413, at *3 5 (E.D. Penn. Nov. 6, 2007)). 6 Here, Defendant Krause is only named in Count Two of Plaintiff’s three-count 7 complaint and is the sole Defendant named in Count Two. In Count Two, Plaintiff alleges 8 that on August 15, 2022, Defendant Krause was deliberately indifferent to the fact that 9 Plaintiff standing on a chair could result in serious injury. Defendant Krause is not 10 implicated in any way in Count One or Three. Count One involves Defendants Thomas, 11 Perko, and Reidy and Plaintiff’s alleged fall on August 18, 2022. Count Three only 12 names Defendant Pina and involves excessive force alleged to have occurred in July 13 2022. Hence, the incidents alleged against the non-military Defendants occurred on 14 different dates than those alleged against Defendant Krause, and the incidents appear to 15 involve distinct facts, allegations, and evidence. Although Defendants assert that they 16 possess “knowledge” about each claim, neither Defendant Krause nor the remaining 17 Defendants claim they witnessed the events alleged in the counts they are not named in. 18 Because allowing Counts One and Three to proceed at this time would not 19 prejudice Defendant Krause or the remaining Defendants, the Court will allow Counts 20 One and Three against Defendants Thomas, Perko, Reidy, and Pina to proceed, with 21 leave for Defendants to move for appropriate relief if the absence of Krause from this 22 litigation prevents them from concluding discovery or dispositive motion briefing. Reidy 23 and Pina shall answer or otherwise respond to Plaintiff’s Complaint within 14 days of the 24 date this Order is filed. 25 Accordingly, 26 IT IS ORDERED: 27 (1) Plaintiff’s Motion for Extension of Time for Summons/Appointment of 28 Counsel (Doc. 12) is granted in part and denied in part. The Motion is granted, nunc || pro tunc, with respect to the request for an extension of time to complete service. The 2|| deadline for Plaintiff to complete service is extended to sixty (60) days from the date this || Order is filed. The Motion is denied without prejudice with respect to the request for 4|| appointment of counsel. 5 (2) Plaintiff's Motion for Pima County and Naphcare to Provide Addresses 6|| (Doc. 27) is partially granted to the extent the Court will order defense counsel to provide the last-known addresses of Defendants Perko and Thomas. The Motion is 8 || denied without prejudice to the extent it requests any other relief. 9 (3) Within fourteen (14) days of the date this Order is filed, defense counsel 10 || shall file under seal the last-known addresses of Defendants Perko and Thomas. 11 (4) — Plaintiff's Motion for Appointment of Counsel/Injunctive Relief (Doc. 18) || is denied without prejudice. 13 (5) Plaintiffs Motion for Default Judgment (Doc. 22) is denied without 14|| prejudice. 15 (6) Defendants’ Motion to Stay Proceedings Under Servicemembers Civil Relief Act and Extend Responsive Pleading Deadline (Doc. 23) is granted in part and || denied in part. The Court will order Count Two against Defendant Krause to be stayed 18 || and Counts One and Three against Defendants Thomas, Perko, Reidy, and Pina to proceed. Defendants Reidy and Pina shall answer or otherwise respond to □□□□□□□□□□ 20 || Complaint within fourteen (14) days of the date this Order is filed. Defendant Krause shall notify the Court within thirty (30) days of his return from deployment. 22 Dated this 24th day of July, 2023. 23 24 25 — 4p □ *6 Honorable Rostsiary □□□□□□□ 27 United States District □□□□□ 28

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