Young v. Stenger ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 LAMAR YOUNG, 7 Case No. 21-cv-08131-DMR (PR) Plaintiff, 8 ORDER DENYING DEFENDANTS’ v. MOTION FOR SUMMARY 9 JUDGMENT; DENYING PLAINTIFF’S SGT. STENGER, et al., CROSS-MOTION FOR SUMMARY 10 JUDGMENT; STAYING ACTION; AND Defendants. REFERRING FOR SETTLEMENT 11 PROCEEDINGS 12 I. INTRODUCTION 13 This is a civil rights case filed by self-represented Plaintiff Lamar Young pursuant to 42 14 U.S.C. § 1983. The operative complaint is the amended complaint. Dkt. 15. He seeks monetary 15 and punitive damages as well as declaratory and injunctive relief. Id. at 4-5.1 16 Plaintiff alleges that the following Defendants employed by the Antioch Police Department 17 (“APD”) used excessive force against him during an interrogation on October 29, 2020 in West 18 County Detention Center in Contra Costa County: Sergeant James Stenger; and Detectives Kelly 19 Inabnett, Mellone, and Bledsoe.2 See id. Plaintiff asserts that during the interrogation, he refused 20 Defendants’ request that he put on a mask3 in order for them to take a photograph of him wearing 21 it.4 Plaintiff alleges that when he refused to put on the mask, Stenger, Mellone and Bledsoe forced 22 1 Page number citations refer to those assigned by the court’s electronic case management 23 filing system and not those assigned by the parties. 24 2 Plaintiff also names the City of Antioch as a Defendant in this action, but erroneously named it as the “Antioch Police Department” in his amended complaint. Dkt. 15 at 1; Dkt. 20. 25 3 The record indicates the mask was a face mask similar to those used during the COVID- 26 19 pandemic. See Inabnett Decl., Ex. B (Video of Plaintiff’s Interview) at 6:07:00. 27 4 The allegations in the original and amended complaint are similar with small variances. 1 him to wear it, using excessive force against him in the process. Id. at 4. Plaintiff further claims 2 that Inabnett failed to intervene to stop the use of excessive force. Id. Plaintiff also alleges a state 3 law claim of negligence against Stenger for failing to prevent a “safety issue.” Id. 4 On April 7, 2022, the court found that Plaintiff’s complaint stated a cognizable Fourth 5 Amendment claim5 against Defendants. Dkt. 8 at 2-3. The court also exercised supplemental 6 jurisdiction over the negligence claim. Id. at 3. 7 On August 23, 2022, the court granted Plaintiff leave to file an amended complaint, and 8 found that, liberally construed, the amended complaint stated: (1) a cognizable Fourth Amendment 9 claim against Stenger, Mellone, and Bledsoe for the alleged use of excessive force, and against 10 Inabnett for failing to intervene; and (2) a supplemental state law claim for negligence, as against 11 Stenger. Dkt. 29. 12 This action has been assigned to the undersigned magistrate judge. Pursuant to 28 U.S.C. 13 § 636(c), with written consent of all parties, a magistrate judge may conduct all proceedings in a 14 case, including entry of judgment. Appeal will be directly to the United States Court of Appeals 15 for the Ninth Circuit. See 28 U.S.C. § 636(c)(3). All parties have consented to magistrate judge 16 jurisdiction in this matter. Dkt. 6; Dkt. 23 at 2. 17 Now pending before the court are Defendants’ motion for summary judgment (opposed by 18 Plaintiff), and Plaintiff’s cross-motion for summary judgment (opposed by Defendants). Dkts. 31, 19 37. Defendants argue as follows: (1) the undisputed material facts do not support an excessive 20 force claim against any of them; (2) they are entitled to qualified immunity; (3) the excessive force 21 claim is barred by collateral estoppel; (4) Stenger was not negligent in “failing to prevent a safety 22 issue”; and (5) no evidence exists to support punitive damages. Dkt. 31. In his motion, Plaintiff 23 argues that “there is no factual dispute between [him] and [Defendants] in regards to [their] 24 violation of [his] Fourth Amendment Constitutional Right.” Dkt. 37. For the reasons set out 25 amended complaint, Plaintiff alleges that Defendants wanted him to wear a mask after he told 26 them he was willing to take a lie detector test. Compare Dkt. 1 at 3 with Dkt. 15 at 2-3. 27 5 At the time of the incident, Plaintiff was a post-arrest, pre-arraignment detainee. 1 below, the Court DENIES Defendants’ Motion for Summary Judgment, and DENIES Plaintiff’s 2 Cross-Motion for Summary Judgment. Dkts. 31, 37. 3 II. FACTUAL BACKGROUND 4 A. The Parties 5 At the time of this incident, Plaintiff was in the custody of APD and was being interviewed 6 about his role and his brother’s role in a crime that had been committed in Antioch. See Inabnett 7 Decl., Ex. B (Video of Plaintiff’s Interview). Inabnett handled the majority of the interview, with 8 Stenger, Mellone, and Bledsoe all participating at various times. Id.; see Inabnett Decl., Ex. H 9 (Labeled Photo of Interview). All Defendants were present during the incident in question, and all 10 are employed by the City of Antioch. Id. 11 B. Circumstances Around the Alleged Excessive Force Incident6 12 Unless otherwise noted, Plaintiff’s and Defendants’ versions of the facts are generally 13 similar in their recollection of the interview and are mostly in line with the videotape recording of 14 the interview. 15 APD arrested Plaintiff on October 29, 2020, and Inabnett interviewed him on the same 16 day. Inabnett Decl. ¶ 15. Plaintiff was placed in an interview room with an audio/visual recording 17 device, and the interview was recorded. Id. at ¶ 16. He wore civilian clothes and was provided 18 with water and food. Id. at ¶ 17; see Inabnett Decl., Ex. B. Plaintiff waived his Fifth Amendment 19 rights under Miranda and admitted to being on active probation for petty theft. Inabnett Decl. at 20 ¶ 18. The videotape recording has been submitted as part of the record, and it shows that the 21 interview was over six hours long, including breaks. Inabnett Decl., Ex. B. 22 6 Defendants and Plaintiff both filed Requests for Judicial Notice (“RJNs”). Dkts. 31-2 at 23 1-2, 37 at 2. A court may take judicial notice of court filings and other matters of public record. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). 24 Defendants’ RJN is GRANTED in part and DENIED in part. Dkt. 31-2 at 1-2. It is GRANTED with respect to Plaintiff’s criminal complaint and information, as well as the transcript of the 25 hearing on the motion to suppress. Dkt. 31-2, Exs. A-C. It is DENIED with respect to Plaintiff’s brother’s criminal complaint and information (dkt. 31-2, Exs. A, B) because those documents are 26 not relevant to this case. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007). Plaintiff asks the court to take judicial notice of “an ongoing investigation of the [APD] by the [FBI] of 27 corruption since March 2022” to help corroborate his motion. Dkt. 37 at 2. This request is 1 Inabnett initially used a ruse, claiming he was just investigating credit card fraud, and 2 showed Plaintiff Antioch Bank of America ATM surveillance photographs of a suspect using a 3 stolen ATM card. Id. at ¶ 19. Inabnett states that Plaintiff’s calm demeanor changed when he 4 introduced the topic of a sexual assault. Id. at ¶ 18. He further stated that Plaintiff became more 5 talkative and longwinded and was loud, often yelling. Id. Inabnett “bluntly told Plaintiff that he 6 and [his brother] are the suspects in the ATM photographs.” Id. at ¶ 19. Plaintiff denied this, 7 claiming he had never been to Antioch and was at his Stockton home with his wife and child on 8 the night of the incident. Id. Inabnett confronted Plaintiff with cellphone records that placed 9 Plaintiff and his brother at the scene of the sexual assault/robbery (which is how they would have 10 allegedly obtained the stolen ATM cards), but Plaintiff said the cellphone number belonged to his 11 wife. Id. at ¶ 20. Inabnett informed Plaintiff that DNA from the victim of the attack matched his 12 and his brother’s DNAs. Id. According to Inabnett, Plaintiff did not appear to understand the 13 gravity of this evidence and, instead, focused on the ATM surveillance photographs. Id. 14 After over five hours, Plaintiff continued to deny responsibility for his role in the attack. 15 Id. at ¶ 21. Inabnett obtained a DNA kit and informed Plaintiff that the officers possessed a signed 16 warrant for a DNA sample, which Plaintiff “willingly provided.” Id. At this point of the 17 interview, each officer (Inabnett, Mellone, Bledsoe, and Stenger) had spoken to or interacted with 18 Plaintiff. Id. at ¶ 22. 19 Before ending the interview, Defendants attempted to photograph Plaintiff with a black 20 mask on. Id. at ¶ 23. After obtaining a camera and a black mask, Inabnett asked Plaintiff’s 21 permission to take a photo of him with the mask on.7 See Inabnett Decl. ¶ 24; Dkts. 1, 15, 37. 22 7 The parties’ versions differ here, although in ways that have no bearing on the excessive 23 force analysis. According to the amended complaint, Inabnett asked if Plaintiff would take a lie detector test, and Plaintiff agreed. Dkt. 15 at 2. Inabnett then left the room for approximately five 24 minutes and returned with a black mask. Id. Plaintiff asked what the mask was for, believing Inabnett had left to get the lie detector. Id. Plaintiff said he would take the test but would not put 25 on the mask. Id. The court notes that the video neither shows a lie detector being discussed in the moments before Inabnett left to retrieve the mask and camera, nor once he returned with the items. 26 See Inabnett Decl., Ex. B. Plaintiff’s version of the facts relating to the lie detector test cannot be verified by video evidence, and such facts are also omitted from his original complaint (dkt. 1). 27 Defendants do not mention a lie detector test in either their motion for summary judgment or 1 Plaintiff declined, stating, “I’m not going to do all that.” Inabnett Decl., Ex. B at 5:32:34. They 2 went back and forth for several minutes over whether Plaintiff would wear the mask and be 3 photographed. Id. at 5:33:00-5:39:00. Plaintiff then yelled, “I’m ready to go!” Id. at 5:40:04. 4 The detectives were unsuccessful in gaining Plaintiff’s consent to put on the mask. Id. at 5:39:00- 5 5:45:00. Mellone told Plaintiff, “We’re getting these pictures. It doesn’t matter what you do.” Id. 6 at 5:47:40. 7 This back and forth argument over the mask continued for approximately five minutes, and 8 Plaintiff still refused to consent. Id. at 5:45:50-5:50:50. Plaintiff demanded the officers show him 9 something “in black and white” saying that he had to consent to the photo. Id. at 5:47:20. When 10 the officers could not do so, Plaintiff then said “I’m done talking.” Id. at 5:49:35. Stenger then 11 read the following from a piece of paper, 12 Lamar, you do not have the right to refuse to participate in photographs . . . if you do refuse, your decision to do so might be used 13 against you in court as proof that you are in fact guilty of the crime for which you have been arrested and that you knew the photograph 14 would positively identify you as the perpetrator. Having these consequences in mind, do you still refuse to participate in the 15 photographs? 16 Id. at 6:02:52-6:03:24. Plaintiff responded, “Yes sir.” Id. at 6:03:25. Stenger then warned 17 Plaintiff: “They’re still going to force you. Go get the cuffs.” Id. at 6:03:27. The four officers 18 gathered in the small interview room and applied latex gloves while Plaintiff had his head down 19 on the table in the other interview room. Inabnett Decl. ¶ 26. They told Plaintiff to put his hands 20 behind his back, and Plaintiff complied. Id. Bledsoe and Stenger put handcuffs on Plaintiff. Id. 21 Plaintiff never complained the cuffs were too tight or were causing any discomfort. Id. 22 Stenger then tried to put the hoodie section of Plaintiff’s sweatshirt on Plaintiff’s head to 23 match the suspect in the ATM’s image. Inabnett Decl., Ex. A, Ex. B at 6:07:00. According to 24 Defendants, Plaintiff resisted by moving his head. Id. Inabnett states that Plaintiff “continued to 25 resist by pushing himself into the corner against the wall.” Inabnett Decl. ¶ 27. Plaintiff denies 26 27 Plaintiff’s cross-motion for summary judgment, which can be construed as an unverified 1 this, stressing that he was standing and his hands were handcuffed behind his back. Dkt. 15 at 3. 2 The officers then warned Plaintiff that they were “putting the mask on,” but ordered 3 Plaintiff “not to resist [them]” because they “d[id] not want anyone to get hurt.” Inabnett Decl., 4 Ex. B at 6:07:00-6:07:13. Bledsoe held Plaintiff’s right hand, which was secured in handcuffs. Id. 5 Inabnett, who held the mask, then moved closer to Plaintiff’s face. Id. at 6:07:14. Inabnett and 6 Mellone each held one side of the mask and unsuccessfully attempted to put it on Plaintiff’s face. 7 Id. at 6:07:20. Plaintiff moved his upper body and head towards his knees. Id. Plaintiff said, 8 “Can y’all watch out please?” Id. at 6:07:22. The officers pushed his body up against the chair 9 and again tried to secure the mask onto Plaintiff’s face. Id. Plaintiff then pushed himself into a 10 corner. Id. at 6:07:26. Plaintiff asked, “Y’all doing this on camera?” Id. Mellone replied, “Yeah. 11 Do not resist.” Id. One of the other detectives said, “So they know that we’re legal.” Id. 12 Each officer, excluding Inabnett, then used their hands to hold Plaintiff in place while 13 Inabnett attempted to put the mask on Plaintiff. Id. Inabnett used a camera to take a photo while 14 the three other Defendants held Plaintiff in place. Inabnett Decl. ¶ 29. Plaintiff said, “You’re 15 poking me! Can you let go please? God damn.” Inabnett Decl., Ex. B at 6:07:43. Inabnett 16 moved closer and photographed Plaintiff’s face. Id. Plaintiff exclaimed, “He got my neck!” and 17 one of the officers replied, “No one has anything on your neck. Stop!” Id. at 6:07:46. Bledsoe 18 was in between Stenger and Mellone. Id. Stenger was on Plaintiff’s right side, helping hold him 19 down. Id. While the video is unclear due to the camera angle, it appears to show Mellone’s hand 20 below Plaintiff’s chin area near his neck, and Stenger trying to pull the hoodie up over Plaintiff’s 21 head. Id. Bledsoe’s hands are not visible, but his positioning suggests that he had his hands 22 somewhere on Plaintiff’s arms or shoulder area, restraining him. Id. 23 Plaintiff’s version of these particular events differ significantly. In his amended complaint, 24 Plaintiff alleges that when officers put on the mask, Stenger stood behind Plaintiff, “choking him 25 in a death lock.”8 Dkt. 15 at 4. Plaintiff adds as follows: “Det. Mellone was on one side of 26 [Plaintiff] and Det. Bledsoe was on the other side holding [Plaintiff] down while Det. Inabnett was 27 1 forcing the black mask on [Plaintiff’s] face.” Id. at 3. As explained above, Defendants dispute 2 this fact. Inabnett states the officers used “minimal force to secure Plaintiff in place.” Inabnett 3 Decl. ¶ 28. None of the other officers submitted declarations for these motions. 4 The video evidence does not provide a clear view of what exactly transpired during the 5 moment of the alleged choking incident. In the video, one can see an individual’s hand in blue 6 gloves, which appears to be Stenger’s, around the right side of the base of Plaintiff’s head, but it is 7 unclear as to the exact placement because the camera’s position and the positioning of the parties 8 obstructs the view of Plaintiff’s head and neck. Inabnett Decl., Ex. B at 6:07:30-40. From the 9 video it appears that Mellone had his hand below Plaintiff’s chin, near the neck region during the 10 relevant time. Id. at 6:07:30-6:08:30. The parties’ conflicting claims -- namely, Plaintiff’s 11 statement that he was being choked and the officers’ denial of that statement -- cannot be 12 confirmed by the video evidence. See Inabnett Decl., Ex. B. 13 As described further below, the officers made two attempts to photograph Plaintiff, first 14 with a mask and then with a neck gaiter. Partway through the officers’ first attempt to photograph 15 Plaintiff, Mellone shifted position, which blocked the camera’s view of Plaintiff. Id. at 6:08:00. 16 One of the officers said, “this is all going to be used against you in court,” while the other three 17 officers continued to hold Plaintiff down. Id. at 6:08:04. Plaintiff exclaimed, “Look what y’all 18 doin’ to me!” Id. at 6:08:07. Inabnett took more photographs.9 Id. One of the other officers 19 stated “Stop resisting! Stop bro! Don’t do that.” Id. at 6:08:15. According to Inabnett, the 20 warning was made because Plaintiff was “attempt[ing] to eat the mask or possibly bite the 21 officers,” and Inabnett was also “concerned the plaintiff may bite (or otherwise harm) himself.”10 22 Inabnett Decl. ¶¶ 30, 31. The officers then discussed getting a neck gaiter to use instead of a 23 mask, and they let go of Plaintiff. Id. at ¶ 31. 24 According to Defendants, they made a plan to use a black neck gaiter instead of a face 25 9 The record does not include any photographs of Plaintiff with the black face mask, even 26 though the video shows at least one photo was taken. Inabnett Decl., Ex. B at 6:08:06. 27 10 The amended complaint (dkt. 15) has no mention of biting or chewing, and no other 1 mask for three reasons. Id. First, they believed it would be easier to apply than the mask. Id. 2 Second, they believed it would be harder for Plaintiff to chew through. Id. Third, they believed it 3 would more closely match the suspect in the photo of the ATM footage, who wore a black neck 4 gaiter as opposed to a mask. Id.; see Inabnett Decl., Ex. A (Labeled Photo of ATM footage). 5 Inabnett left the room to retrieve the neck gaiter while the other officers remained with Plaintiff. 6 Inabnett Decl. at ¶ 32. While they waited, Bledsoe asked Plaintiff to calm down. Id. at 6:08:46. 7 Mellone told him, “We’re not leaving here ’till we get these pictures so you can do all this if you 8 want. It’s not going to look good.” Id. 9 Inabnett returned with the black neck gaiter, moved towards Plaintiff, and placed it over 10 his head. Id. at 6:09:17. He told Plaintiff to relax. Id. At this time, Stenger was in the corner 11 near the door, Mellone held the camera to take pictures of Plaintiff, and Bledsoe was holding 12 Plaintiff’s body in place. Id. at 6:09:30-6:10:10. Defendants claim Plaintiff continued to tense 13 and resist the taking of photographs. Id. at 6:09:40. Mellone snapped several pictures of Plaintiff 14 wearing the neck gaiter. Inabnett Decl. ¶ 34; Inabnett Decl., Exs. C-G (Photos of Plaintiff With 15 Black Neck Gaiter As Mask). Once Mellone finished, Inabnett removed the black neck gaiter. 16 Inabnett Decl., Ex. B at 6:10:07. Plaintiff asked, “There you happy now? Shit! I could have did 17 it my god damn self.” Id. Inabnett responded, “Then why didn’t you?” and Plaintiff responded, “I 18 told you that I was going to put the mask on.” Id. Following a brief back and forth, the officers 19 left the room. Id. In his amended complaint, Plaintiff neither mentions the neck gaiter nor raises 20 any issues of excessive force used by Defendants to put on the neck gaiter as a mask. See Dkt. 15. 21 After a couple of minutes of being alone in the interview room the video shows that 22 Plaintiff said, “My mouth hurt on the side.” Id. at 6:13:10. He continued to complain about his 23 mouth pain until Inabnett responded to check on Plaintiff. Id. at 6:14:38. Plaintiff told Inabnett, 24 “The side of my mouth hurt.” Id. at 6:14:44. Plaintiff stated that his mouth hurt because the 25 officers were pushing his face in. Id. at 6:14:54. Inabnett then left the room. Id. at 6:15:15. 26 C. Plaintiff’s Alleged Injuries 27 Plaintiff claims that this incident caused him “pain, suffering, physical injury [and] 1 being choked. Id. at 3. Plaintiff has nightmares about the incident and “wake[s] up in cold 2 sweats.” Id. He claims to have suffered “pain in [his] throat [and] it was hard for [him] to 3 swallow.” Id. After he was booked at the jail, Plaintiff saw the nurse about his throat and spoke 4 with a psychiatrist about these problems. Id. 5 D. Motion to Suppress in Underlying State Court Criminal Case 6 On August 11, 2022, Contra Costa County Superior Court Judge David E. Goldstein 7 presided over a motion to suppress filed by Plaintiff’s defense counsel in his criminal case. See 8 Dkt. 31-2, Ex. C (Mot. to Suppress Transcript). Defense counsel argued that the photographs of 9 Plaintiff wearing the black mask should be excluded. Id. at 40:16-22. Defense counsel argued the 10 officers’ actions constituted a warrantless search, was “unconscionable,” and violated due process. 11 Id. at 40:16-22, 41:23-25. He cited Rochin v. California, 342 U.S. 165, 209 (1952), arguing that 12 “forcing a face mask onto a person is a violation of due process because it shocks the conscience.” 13 Id. at 41:26-42:5. He further argued as follows: “You can’t have government agencies . . . forcing 14 people into positions that can get them seriously injured, if not killed. We’re talking about the 15 head. You have large officers surrounding his head with blue gloves and forcing it into a position 16 for a photograph. That’s shocking.” Id. at 42:6-11. 17 The state superior court agreed with defense counsel that “in theory” “the photographs are 18 subject to a suppression motion.” Id. at 49:12-13. The court pointed out that officers can take 19 suspects’ photograph as part of a standard booking. Id. at 47:27-48:6. The court added as 20 follows: “[police] can’t beat the hell out of a defendant in order to submit to a photograph. They 21 can’t use unnecessary or excessive force to get a defendant to submit to a cheek swab or to the 22 taking of a photo or submitting to a search.” Id. at 48:16-21. However, the court considered the 23 evidence presented and found that the force the officers’ used to take Plaintiff’s photographs “was 24 reasonable and necessary and does not shock the conscience.” Id. at 51:16-18. The court denied 25 the motion to suppress “because the ultimate force that was used was reasonable and necessary to 26 fulfill a valid law enforcement purpose and investigation in a setting where [Plaintiff’s] 27 expectation of privacy, although not nonexistent, was extremely limited and it was done in a III. MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT 1 A. Standard of Review for Summary Judgment 2 “[S]ummary judgment is appropriate where there ‘is no genuine issue as to any material 3 fact’ and the moving party is ‘entitled to a judgment as a matter of law.’” Alabama v. North 4 Carolina, 560 U.S. 330, 344 (2010) (quoting Fed. Rule Civ. Proc. 56(c)) (citing cases). “The 5 burden of establishing the nonexistence of a ‘genuine issue’ is on the party moving for summary 6 judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). The movant must inform the 7 district court “of the basis for its motion, and identifying those portions of ‘the pleadings, 8 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ 9 which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 10 Where the moving party meets that burden, the burden then shifts to the non-moving party 11 to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324. 12 “This burden is not a light one. The non-moving party must show more than the mere existence of 13 a scintilla of evidence.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). An issue is “genuine” only if there is 15 sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson, 16 477 U.S. at 322-23. All reasonable inferences are to be drawn in favor of the party against whom 17 summary judgment is sought. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 18 574, 587 (1986). The court’s function on a summary judgment motion is not to make credibility 19 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 20 Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 21 When the parties file cross-motions for summary judgment, the district court must consider 22 all of the evidence submitted in support of both motions to evaluate whether a genuine issue of 23 material fact exists precluding summary judgment for either party. The Fair Housing Council of 24 Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001). 25 A district court may only consider admissible evidence in ruling on a motion for summary 26 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). In 27 support of Defendants’ motion for summary judgment, Defendants have presented video evidence 1 (Inabnett Decl., Ex. B), Inabnett ’s declaration (Dkt. 31-4), various other photo exhibits (Inabnett 2 Decl., Exs. A, C-H), and Plaintiff’s criminal complaint/information as well as the motion to 3 suppress hearing transcript (Dkt. 31-2, Exs. A-C). Meanwhile, Plaintiff’s verified amended 4 complaint (dkt. 15) may be used as an opposing affidavit under Rule 56, to the extent it is based 5 on personal knowledge and sets forth specific facts admissible in evidence. Schroeder v. 6 McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). Even if Plaintiff’s cross-motion for 7 summary judgment could also be construed as an opposition, the court notes that it is not verified 8 because he failed to sign it under penalty of perjury. See Dkt. 37. 9 B. Excessive Force Claim 10 1. Applicable Law 11 Excessive use of force violates a pretrial detainee’s federal constitutional rights, and the 12 source of this right differs depending on whether the person is a suspect at large or an arrestee who 13 is pre- or post-arraignment at the time of the alleged violation. 14 Excessive force claims which arise in the context of an arrest or investigatory stop of a free 15 citizen are analyzed under the Fourth Amendment reasonableness standard. See Graham v. 16 Connor, 490 U.S. 386, 394-95 (1989); Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir. 17 1994). The Fourth Amendment reasonableness standard also applies to allegations of use of 18 excessive force against an arrestee while detained in custody post-arrest but pre-arraignment. See 19 Pierce, 76 F.3d at 1043. A post-arraignment pretrial detainee is protected from the use of 20 excessive force by the Due Process Clause of Fourteenth Amendment. See Graham, 490 U.S. at 21 395 n.10. 22 To prove an excessive force claim under section 1983, an arrestee who is pre-arraignment 23 such as Plaintiff, must show that the “force purposely or knowingly used against him was 24 objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). “A court must 25 make this determination from the perspective of a reasonable officer on the scene, including what 26 the officer knew at the time, not with the 20/20 vision of hindsight.” Id. “A court must also 27 account for the ‘legitimate interests that stem from [the government’s] need to manage the facility 1 judgment’ of jail officials ‘are needed to preserve internal order and discipline and to maintain 2 institutional security.’” Id. (quoting Bell v. Wolfish, 441 U.S. at 540, 547 (1979)). Because the 3 Kingsley standard for excessive force claims by pretrial detainees is purely objective, it does not 4 matter whether the defendant understood that the force used was excessive or intended it to be 5 excessive. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc). 6 A court “must also account for the ‘legitimate interests that stem from [the government’s] 7 need to manage the facility in which the individual is detained,’ appropriately deferring to 8 ‘policies and practices that in th[e] judgment’ of jail officials ‘are needed to preserve internal order 9 and discipline and to maintain institutional security.’” Kingsley, 576 U.S. at 397 (quoting Bell, 10 441 U.S. at 540, 547) (alterations in original). In Kingsley, the Supreme Court listed certain 11 factors to “illustrate the types of objective circumstances potentially relevant to a determination of 12 excessive force,” such as: “the relationship between the need for the use of force and the amount 13 of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to 14 limit the amount of force; the severity of the security problem at issue; the threat reasonably 15 perceived by the officer; and whether the plaintiff was actively resisting.” Id. 16 Generally, “officers can be held liable for failing to intercede in situations where excessive 17 force is claimed to be employed by other officers only if ‘they had an opportunity to intercede.’” 18 Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022) (quoting Cunningham v. Gates, 229 19 F.3d 1271, 1289-90 (9th Cir. 2000)) (finding a failure to intervene claim failed because there was 20 no realistic opportunity for officers to prevent a rapidly unfolding shooting). Officers can also be 21 liable for excessive force on a theory of integral participation “only if they participate ‘in some 22 meaningful way’ in the specific actions that constituted a violation.” Hughes, 31 F.4th at 1223 23 (quoting Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004)). 24 2. Analysis of Excessive Force Claim 25 As mentioned above, the analysis of Plaintiff’s Fourth Amendment claim of excessive 26 force turns on the reasonableness of Defendants’ actions under the circumstances. See Pierce, 76 27 F.3d at 1043. Considerations such as the following may bear on the reasonableness or 1 need for the use of force, including consideration of the threat reasonably perceived by the officer, 2 any effort made by the officer to temper/limit the amount of force, and whether the plaintiff was 3 actively resisting; (2) the extent of the plaintiff’s injuries; and (3) the severity of the security 4 problem at issue.11 See Kingsley, 576 U.S. at 397. 5 a. Relationship Between Need for Use of Force and Amount of Force Used 6 The parties have different accounts as to the amount of force used. Plaintiff claims he was 7 choked while he was being forced to wear a mask, while Defendants claim they used “minimal 8 force to secure Plaintiff in place while [the officer] put the mask on [Plaintiff’s] face.” See Dkt. 15 9 at 3; Dkt. 31 at 21:20; Inabnett Decl. ¶ 28. Plaintiff claims he was not a threat to Defendants 10 because he was handcuffed with his hands behind his back, see dkt. 15 at 2, while Defendants 11 claim that Plaintiff was “resisting by moving his head and dropping his bodyweight to avoid being 12 photographed,” dkt. 31 at 20:16-17. Inabnett also claims that Plaintiff “attempted to eat the mask 13 or possibly bite the officers.” Inabnett Decl. ¶ 30. 14 The court finds that there are material disputes of fact that preclude the granting of either 15 motion for summary judgment. The video does not provide a clear view as to whether Plaintiff 16 was choked during the process, nor does it show Plaintiff attempting to bite Defendants. See 17 Inabnett Decl., Ex. B. The video confirms that Plaintiff was handcuffed and surrounded by four 18 officers. See id. at 6:07:46. A reasonable trier of fact could find that such circumstances would 19 impede Plaintiff’s ability to threaten/confront Defendants or their control of the facility. See 20 Kingsley, 576 U.S. at 397 (holding that a legitimate need for force can arise where a reasonable 21 officer would determine that a detainee poses a risk to institutional security). While the video 22 shows some resistance by Plaintiff, a dispute of fact exists as to whether the use of force by 23 Defendants exceeded what was objectively reasonable. The parties disagree on these facts, and 24 the camera does not provide an unobstructed view. Id. at 6:07:22-6:08:25. In addition to the lack 25 26 11 The court finds inapplicable Defendants’ evaluation of Plaintiff’s excessive force claim under Graham because the instant action does not involve an arrest or investigatory stop of a free 27 citizen. See Dkt. 31 at 21-24 (citing Graham, 490 U.S. at 396-97; Bryan v. MacPherson, 630 F.3d 1 of clarity in the video, no photos of Plaintiff with the black face mask exist in the record despite 2 the camera flashing at least once. See id. at 6:08:06. As mentioned, the only photos in the record 3 are those of Plaintiff wearing the black gaiter as a mask. See Inabnett Decl., Exs. C-G. The court 4 further finds that a question of fact exists as to whether any effort was made by Defendants to 5 temper or to limit the amount of force used. Kingsley, 576 U.S. at 397. Specifically, the record 6 shows an alternative existed to putting on the face mask (which seemed difficult to put on and 7 required all four officers to hold down Plaintiff) in the form of a neck gaiter (which more closely 8 matched what the suspect was wearing in the ATM footage, and was readily available and easier 9 to put on). See Inabnett Decl. ¶¶ 30-31, Ex. A. The degree of Plaintiff’s resistance, whether he 10 posed a legitimate threat to Defendants, whether he interfered with Defendants’ need to maintain 11 control of the facility, and whether Defendants made any effort to temper/limit the amount of force 12 used are all material disputes of fact that need to be decided before weighing it against the amount 13 of force used. See Kingsley, 576 U.S. at 397. The video shows Plaintiff yelling that Defendants 14 “got [his] neck,” and Defendants stating they do not. Id. at 6:07:46. The court has taken the 15 following into consideration: the parties’ conflicting sworn statements; the camera’s obstructed 16 point of view during key moments of the incident in question; and the conversations and 17 confrontations before and after the relevant incident (many of which were omitted from both 18 parties’ facts sections). Upon taking the parties’ aforementioned evidence into consideration, the 19 court finds a material question of fact exists as to whether Defendants’ actions in response to the 20 perceived threat were “objectively unreasonable.” See Kingsley, 576 U.S. at 397. 21 b. Extent of Plaintiff’s Injuries 22 A reasonable juror could find that Plaintiff’s injuries, while not major, were not de 23 minimis. The video shows that Plaintiff was surrounded by four officers in the interrogation room 24 and that Defendants applied some amount of force in order to put a mask on his face. Plaintiff 25 complained of mouth and throat pain, and asserts that he later consulted with medical specialists 26 about his physical and mental injuries. Id. 27 The court notes that injury and force are not perfectly correlated and minor injuries will not 1 gratuitously beaten by guards does not lose his ability to pursue excessive force claim merely 2 because he has good fortune to escape without serious injury). Taking Plaintiff’s evidence as true 3 and viewing it in his favor for the purposes of summary judgment, a reasonable juror could 4 determine that Plaintiff’s injuries are considerable enough to not be de minimis. See id. 5 c. Severity of Security Problem at Issue 6 While Defendants provided the court with great detail about the crime for which Plaintiff 7 was arrested, that information is largely irrelevant to the question of the security risk posed by 8 Plaintiff during the incident at issue because he was in police custody, had no weapons, was in 9 handcuffs, and had undergone almost six hours of interrogation at the time of the incident. See 10 Inabnett Decl., Ex. B. Defendants were not acting in the heat of the moment chasing down a 11 subject, but instead were in a comparatively safe space (an interrogation room) where they were in 12 control of a handcuffed suspect. See Inabnett Decl., Ex. B. A reasonable trier of fact could find 13 that these circumstances greatly lessened the danger posed by Plaintiff to Defendants. The limited 14 physical capacity at which Plaintiff was operating due to the restraints would also have limited his 15 ability to disrupt the internal order of the facility, and thus could lead a reasonable trier of fact to 16 question whether he could have contributed to any alleged security problem. See id. 17 In sum, if believed, Defendants’ description of using minimal force necessary to put a 18 mask on a suspect would lead to a conclusion that the force used was not excessive. If believed, 19 Plaintiff’s version of being choked while offering no resistance would lead to a conclusion that the 20 force used was excessive. Summary judgment is not the place for credibility determinations. See 21 T.W. Elec. Serv., 809 F.2d at 630. The court could not grant judgment in Defendants’ favor 22 without accepting Defendants’ version and disbelieving Plaintiff’s version of the events that 23 transpired. Similarly, the court could not grant judgment in Plaintiff’s favor without accepting 24 Plaintiff’s version and disbelieving Defendants’ version. A reasonable trier of fact must hear both 25 versions and decide whom to believe. Plaintiff has established a “‘genuine issue for trial”’ 26 concerning the excessiveness of the force used on him on October 29, 2020 by Stenger, Mellone 27 and Bledsoe. Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). 3. Analysis of Claim Relating to Inabnett’s Failure to Intervene 1 As mentioned above, the court held that the only avenue of liability for Inabnett is a failure 2 to intervene theory. Dkt. 29. However, Defendants claim that Inabnett “cannot be liable under a 3 failure to intervene theory because there was no basis to intervene (i.e., there was no excessive 4 force for which to intervene).” Dkt. 31 at 24 (citing Boyd, 374 F.3d at 780 (holding bystander 5 having no role in unlawful conduct has no duty to intervene)). This argument fails because the 6 court has determined that genuine issues of material fact exist as to whether the other Defendants 7 used excessive force. 8 Furthermore, Defendants argue as follows: 9 To the extent the [c]ourt finds that excessive force was used, Inabnett 10 is not liable for two reasons. First, he did not participate “in some meaningful way.” Boyd, 374 F.3d at 780. [He] merely took 11 photographs of plaintiff. Second, he is entitled to qualified immunity because no precedent clearly established that an officer is expected to 12 intercede under similar circumstances. 13 Id. at 24-25. The court rejects these arguments as well. There are questions of fact as to whether 14 Inabnett participated “in some meaningful way.” Boyd, 374 F.3d at 780. Inabnett was in the same 15 room during the incident and watched the other three officers during this event. See Inabnett Decl. 16 ¶ 35. Inabnett was leading the interview and was also the officer who took Plaintiff’s photos. 17 Inabnett was only a few steps away from Plaintiff during the alleged choking. See Inabnett Decl., 18 Ex. B. A reasonable juror could determine that these circumstances indicate that Inabnett 19 meaningfully participated in the incident and should have intervened to prevent the use of 20 excessive force. 21 Over the course of a six-hour interview and the lengthy discussions that Inabnett had with 22 Plaintiff, sufficient evidence exists for a reasonable trier of fact to find that Inabnett had some 23 level of control over the situation. See Inabnett Decl., Ex. B. This contrasts with Cunningham, 24 where the officers had a very short amount of time and no real opportunity to prevent a rapidly 25 unfolding shooting. See 229 F.3d at 1229-30. Accordingly, as to the failure to intervene claim 26 against Inabnett, neither Defendants nor Plaintiff are entitled to summary judgment. 27 4. Qualified Immunity 1 qualified immunity protects “government officials . . . from liability for civil damages insofar as 2 their conduct does not violate clearly established statutory or constitutional rights of which a 3 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To 4 determine whether an individual official is entitled to qualified immunity, the court must 5 determine whether (1) the official violated a constitutional right and (2) the constitutional right 6 was clearly established such that it would be clear to a reasonable officer that his conduct was 7 unlawful in the particular situation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). 8 Viewing the evidence in a light most favorable to Plaintiff, the facts presented could 9 reasonably support a showing that Defendants used excessive force in violation of Plaintiff’s 10 constitutional rights. 11 As to the second prong of qualified immunity, Defendants do not dispute that the right to 12 be free from excessive force was clearly established at the time of the incident, but they instead 13 argue that their conduct was reasonable under the circumstances. Whether a prison official acted 14 reasonably is a mixed question of law and fact: “It involves an objective test of whether a 15 reasonable official could have believed that his conduct was lawful in light of what he knew and 16 the action he took. If there are genuine issues of material fact in issue relating to the historical 17 facts of what the official knew or what he did, it is clear that these are questions of fact for the jury 18 to determine.” Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 19 1995). Construing the evidence in a light most favorable to Plaintiff, a reasonable officer in 20 Defendants’ position could not have believed that their actions—holding Plaintiff down and 21 choking him when forcing him to wear a mask—were reasonable when faced with a handcuffed 22 detainee, who presented little danger to Defendants. Dkt. 15 at 3. The court further finds that, 23 insofar as the parties’ version of the underlying facts are disputed, genuine issues of material fact 24 exist which preclude a finding that Defendants’ conduct was objectively reasonable. Accordingly, 25 Stenger, Mellone and Bledsoe are not entitled to qualified immunity as to the excessive force 26 claim against them. 27 Inabnett argues that even if it is assumed that a constitutional violation occurred, he is 1 to intervene under similar circumstances. Dkt. 31 at 25. The court finds that genuine issues of 2 material fact exist which preclude such a finding. For example, Plaintiff disputes Defendants’ 3 allegation that they used minimal force in putting the mask on him. Dkt. 15 at 3. The court has 4 also found that genuine issues of material fact exist as to whether the other named Defendants 5 used excessive force, and therefore Inabnett may have had a duty to intervene so long as he had an 6 opportunity to do so. See supra DISCUSSION Part III.B.3. For these reasons, Inabnett is not 7 entitled to qualified immunity as to the failure to intervene claim against him. 8 5. Summary 9 In sum, based on the record evidence, the court finds that genuine issues of material fact 10 exist and that no party is entitled to judgment as a matter of law. With respect to Plaintiff’s cross- 11 motion for summary judgment, when the resolution of disputed facts and the drawing of 12 inferences are made in Defendants’ favor, a reasonable jury could properly find that the individual 13 officers’ actions were objectively reasonable. Kingsley, 576 U.S. at 397. Similarly, with respect 14 to Defendants’ motion for summary judgment, when the resolution of disputed facts and the 15 drawing of inferences are made in Plaintiff’s favor, a jury could properly find that there are 16 genuine disputes of material fact when considering the nature of video evidence, Defendants’ and 17 Plaintiff’s actions at the time, and whether a reasonable person would find Defendants’ actions 18 objectively unreasonable. See id. Thus, summary judgment is not warranted in favor of either 19 party as to the excessive force claim. See Celotex Corp., 477 U.S. at 324. Similarly, summary 20 judgment is not warranted in favor of either party with respect to the failure to intervene claim 21 against Inabnett. In addition, Defendants are not entitled to qualified immunity as to these claims. 22 Accordingly, Defendants’ motion for summary judgment and Plaintiff’s cross-motion for 23 summary judgment with respect to the excessive force and failure to intervene claims are 24 DENIED.12 25 12 The court need not elaborate on the final ground for which Defendants’ motion for 26 summary judgment is based: collateral estoppel. Dkt. 31 at 26-27. Contrary to Defendants’ claims, the issues presented before this federal court and those in state court (relating to the motion 27 to suppress) are not identical in substance or in desired relief. See Garrett v. City and County of C. Municipal Liability Claim 1 Local governments, such as the City of Antioch, are “persons” subject to liability under 42 2 U.S.C. § 1983 where official policy or custom causes a constitutional tort. Monell v. Dep’t of 3 Social Servs., 436 U.S. 658, 690 (1978). To impose municipal liability under section 1983 a 4 plaintiff must show “(1) that he possessed a constitutional right of which he or she was 5 deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 6 indifference to the plaintiff’s constitutional rights; and (4) that the policy is the moving force 7 behind the constitutional violation.” Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 8 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal 9 quotation marks omitted). Liberally construed, the court finds that the amended complaint states a 10 cognizable claim for municipal liability against the City of Antioch.13 Dkt. 15. 11 In his cross-motion for summary judgment, Plaintiff has neither argued nor brought forth 12 facts to satisfy their burden of proof of showing that the City of Antioch had a municipal custom 13 or policy condoning or encouraging the use of excessive force or a pervasive failure to train or 14 supervise that was the moving force behind the constitutional violations. See Dkt. 37. Plaintiff 15 has submitted no evidence which demonstrates, as a matter of law, a causal connection between 16 the City of Antioch and the actions of the officers, or that the municipal Defendants were the 17 moving force that caused his injuries. Id. Therefore, Plaintiff’s cross-motion for summary 18 judgment as to the City of Antioch is DENIED. 19 Similarly, Defendants have pleaded no facts nor have they responded to Plaintiff’s 20 allegation of municipal liability in their motion for summary judgment. See Dkt. 31. 21 Accordingly, Defendants’ motion for summary judgment with regards to the municipal liability 22 claim against the City of Antioch is also DENIED. 23 24 action; (2) there was a final judgment on the merits; and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication.”). Therefore, the court 25 DENIES Defendants’ motion for summary judgment based on the ground of collateral estoppel. 26 13 The court inadvertently left out the City of Antioch as a named Defendant when serving the complaint, see Dkt. 8, but it now finds that Plaintiff has stated a cognizable municipal liability 27 claim, see Dkt. 15. In any event, the Clerk of the Court correctly served this Defendant (dkt. 10), D. State Law Negligence Claim 1 In his amended complaint, Plaintiff claims that Stenger is liable for negligence for “not 2 preventing a safety issue.” Dkt. 15 at ¶ 16. As discussed, Plaintiff’s Fourth Amendment 3 excessive force claim remains pending. Accordingly, the court will retain supplemental 4 jurisdiction over Plaintiff’s pending state law claim. See 28 U.S.C. § 1367(a) (“[D]istrict courts 5 shall have supplemental jurisdiction over all other claims that are so related to claims in the action 6 within such original jurisdiction that they form part of the same case or controversy under Article 7 III of the United States Constitution”). The negligence claim arises from the same series of events 8 during the interview between Plaintiff and Defendants and is to be decided on the same operative 9 facts. See id. Accordingly, summary judgment is not warranted as to the negligence claim. 10 E. Claim of Punitive Damages 11 Punitive damages may be awarded in a section 1983 suit “when the defendant’s conduct is 12 shown to be motivated by evil motive or intent, or when it involves reckless or callous 13 indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). 14 Defendants argue that Plaintiff is not entitled to punitive damages because Plaintiff has not 15 demonstrated the type of evil motive or intent, or reckless and callous indifference needed for such 16 damages. Dkt. 31 at 27-28. The court disagrees. Viewing the evidence in the light most 17 favorable to Plaintiff and if he is believed, a reasonable trier of fact could find that Defendants 18 used excessive force to hold him down while he was handcuffed to a chair and choked him to gain 19 a photograph after a six-hour interrogation session. See Inabnett Decl., Ex. B; see also Dkt. 15 at 20 2-3. Moreover, Plaintiff’s status as a “dangerous felon suspected of a brutal crime” as alleged by 21 Defendants, see Dkt. 31 at 28, is irrelevant as to whether Plaintiff’s civil rights were recklessly or 22 callously violated by Defendants’ actions. Thus, Defendants fail to show that they are entitled to a 23 ruling that punitive damages are inappropriate on these facts for purposes of summary judgment. 24 There are sufficient alleged facts for which the standard for punitive damages may be found to 25 exist by a reasonable trier of fact, and thus punitive damages should not be denied without 26 reaching the merits of Plaintiff’s claims. 27 IV. REFERRAL TO PRO SE PRISONER SETTLEMENT PROGRAM 1 The court has not granted summary judgment on Plaintiff’s pending claims. This case 2 appears a good candidate for the court’s Pro Se Prisoner Settlement Program. 3 Good cause appearing therefor, this case is now referred to Magistrate Judge Robert M. 4 Illman for settlement proceedings pursuant to the Pro Se Prisoner Settlement Program. The 5 proceedings will take place within one hundred twenty days of the date this order is filed. 6 Magistrate Judge Illman will coordinate a time and date for settlement proceedings with all 7 interested parties and/or their representatives and, within five days after the conclusion of the 8 proceedings, file with the court a report for the prisoner settlement proceedings. 9 From time to time, prisoner-plaintiffs have refused to participate in settlement proceedings. 10 Although the court assumes that will not occur in this case, the court wants to make clear the 11 consequences if it does. Judicial resources are consumed preparing for settlement conferences, 12 and those resources are wasted when a scheduled conference does not proceed. To avoid that 13 happening, Plaintiff is now specifically ordered to attend and participate in the settlement 14 conference proceedings. He does not have to reach a settlement or other resolution of his claims, 15 but he absolutely must attend and participate in all the settlement conference proceedings. The 16 conference may be set up so that he will appear in person, by videoconference or by telephone— 17 and he must attend whatever format Magistrate Judge Illman chooses. 18 Plaintiff is cautioned that he may be sanctioned for failure to comply with an order to 19 participate in a settlement conference, and such sanctions may include dismissal of part or all of 20 the action. See Fed. R. Civ. P. 16(a), (f), and 41(b). 21 V. MOTION FOR APPOINTMENT OF COUNSEL 22 Plaintiff has filed a motion for appointment of counsel. Dkt. 44. Plaintiff requests that the 23 court appoint counsel because he is unable to afford counsel, the issues presented are complex, he 24 believes a lawyer would better allow him to cross-examine and present evidence, he has limited 25 law library access, and he cannot effectively litigate his case. Id. at 1. However, there is no 26 constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 27 (1981). 28 U.S.C. § 1915 confers on a district court only the power to “request” that counsel 1 represent a litigant who is proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). This does not 2 give the courts the power to make “coercive appointments of counsel.” Mallard v. United States 3 Dist. Court, 490 U.S. 296, 310 (1989). 4 The court may ask counsel to represent an indigent litigant under section 1915 only in 5 “exceptional circumstances,” the determination of which requires an evaluation of both (1) the 6 likelihood of success on the merits and (2) the ability of the plaintiff to articulate his claims pro se 7 in light of the complexity of the legal issues involved. See Rand v. Rowland, 113 F.3d 1520, 1525 8 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 9 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before 10 reaching a decision on a request for counsel under section 1915. See id. Neither the need for 11 discovery, nor the fact that the pro se litigant would be better served with the assistance of 12 counsel, necessarily qualify the issues involved as complex. See Rand, 113 F.3d at 1525 (where 13 plaintiff’s pursuit of discovery was comprehensive and focused and his papers were generally 14 articulate and organized, district court did not abuse discretion in denying request for counsel). 15 Here, the court finds that Plaintiff has aptly presented his claims, he has successfully 16 presented various arguments in his cross-motion for summary judgment, and the issues presented 17 in Defendants’ motion for summary judgment are straightforward. Therefore, appointment of 18 counsel is not necessary at this time. Accordingly, Plaintiff’s motion for appointment of counsel 19 is DENIED without prejudice to renewing if settlement proceedings are unsuccessful and this case 20 is scheduled for trial. Dkt. 44. 21 VI. CONCLUSION 22 For the foregoing reasons, the court orders as follows: 23 1. Defendants’ RJN (dkt. 31-2 at 1-2) is GRANTED in part and DENIED in part, and 24 Plaintiff’s RJN (dkt. 37 at 2) is DENIED. See supra fn. 6. 25 2. The Court DENIES Defendants’ motion for summary judgment and DENIES 26 Plaintiff’s cross-motion for summary judgment. Dkts. 31, 37. 27 3. Pursuant to Local Rule 72-1, this matter is referred to Magistrate Judge Illman for ] appearance by notice from Magistrate Judge Illman. Plaintiff must attend all conferences 2 || scheduled by Magistrate Judge IIIman. Failure to attend even one conference, or a failure to 3 comply with Magistrate Judge Illman’s instructions and orders in every respect, will result in the 4 || dismissal of this action with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for 5 failure to prosecute. The clerk shall forward a copy of this order to all parties and to Magistrate 6 || Judge Illman, and terminate all pending motions. This action is STAYED until further order of 7 || this court. 8 4. The clerk shall ADMINISTRATIVELY CLOSE the file. 9 5. If this matter does not settle, then the court will reopen this case and it will proceed 10 to trial. 11 6. Plaintiff's motion for appointment of counsel is DENIED without prejudice to 12 renewing if settlement proceedings are unsuccessful and this case is scheduled for trial. Dkt. 44. E 13 7. This Order terminates Docket Nos. 31 and 37. 14 IT IS SO ORDERED. 3 15 Dated: August 15, 2023 DONNA M. RYU 17 Chief Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28