Ortega et al v. San Diego Police Department et al

Filing 195

ORDER Denying 190 Motion for Leave to Appeal In Forma Pauperis. The Court finds that Ortega's contentions aren't supported by the record, her request to proceed in forma pauperis is Denied. Signed by Judge Larry Alan Burns on 5/4/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 SHAKINA ORTEGA, et al., 11 12 13 CASE NO. 13cv87-LAB (JMA) Plaintiffs, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS vs. SAN DIEGO POLICE DEPT., et al., Defendants. 14 15 16 Shakina Ortega appeals from a jury verdict for defendants Jonathan McCarthy and 17 the City of San Diego. Ortega asks the Court to authorize her to proceed in forma pauperis. 18 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is 19 not taken in good faith.” 28 U.S.C. § 1915. The Court should deny the motion if the moving 20 party fails “to show the existence of a reasoned, nonfrivolous argument on the law and facts 21 in support of the issues raised on appeal.” Rolland v. Primesource Staffing, L.L.C., 497 F.3d 22 1077, 1079 (10th Cir. 2007). 23 Ortega identifies four errors that all turn on a common issue: the jury may have found 24 for the defendants because jurors thought that McCarthy, and not the City of San Diego, 25 would be financially responsible for any judgment. The Court finds this argument is frivolous. 26 The jury found that Officer McCarthy acted in self-defense. To make that finding, the 27 jury instruction explained that the jury needed to find both Officer McCarthy and the City of 28 San Diego were not liable: -1- 13cv87 1 2 3 Officer McCarthy and the City of San Diego are not liable if Officer McCarthy was justified in killing Victor Ortega in self-defense . . . . Officer McCarthy and the City of San Diego have the burden of proving by a preponderance of the evidence that the killing was justified. If Officer McCarthy and the City of San Diego have not met this burden, then self-defense has not been established.1 4 The verdict form was clear that the City of San Diego, not just Officer McCarthy, could be 5 found liable. Specifically, the jury was asked if “Jonathan McCarthy and the City of San 6 Diego” were liable for battery and wrongful death. Jurors unanimously answered “no.” Both 7 the verdict form and the jury instructions made it clear that the City of San Diego was on the 8 hook for any damages if the jury found Officer McCarthy violated the law. 9 The potential issues Ortega identifies are also frivolous for another reason: if the jury 10 thought McCarthy was liable, but hesitated to find against him because jurors were 11 concerned that he would have to pay a judgment, the jury could have found him liable and 12 awarded only a small sum of money that they thought he could afford. But they didn't. The 13 Court finds nothing to support Ortega’s contention that the specter of Officer McCarthy’s 14 personal liability may have influenced the jury’s decision. 15 Courts have the “power to protect the public from having to pay heavy costs incident 16 to the inclusion of ‘wholly unnecessary' matters in an in forma pauperis appeal.” Adkins v. 17 E.I. DuPont de Nemours & Co., 335 U.S. 331, 337 (1948). Because the Court finds that 18 Ortega’s contentions aren’t supported by the record, her request to proceed in forma 19 pauperis is DENIED. 20 IT IS SO ORDERED. 21 22 DATED: May 4, 2017 23 24 HONORABLE LARRY ALAN Burns United States District Judge 25 26 27 28 1 Dkt. 180, Instruction No.18. See also Instruction No.14 (“Ortega claims that Officer McCarthy battered Victor Ortega . . . and McCarthy and the City of San Diego are liable for this injury.”); Instruction No.15 (“Ortega’s Heirs also claim that Officer McCarthy and the City of San Diego are responsible for the wrongful death of Victor Ortega.”). -2- 13cv87

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