Benton v. John Doe 1 et al

Filing 158

OPINION AND ORDER. Defendant's motion to dismiss for lack of subject matter jurisdiction (ECF # 153 ) is DENIED, defendant's alternative motion to disqualify plaintiff from the pro bono program (ECF # 153 ) is GRANTED, and plaintiff's motion for pro bono representation (ECF # 156 ) is DENIED. IT IS SO ORDERED. Signed on 3/5/2018 by Magistrate Judge Youlee Yim You. (Copy mailed to plaintiff). (pvh)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

GREGORY BENTON,
Plaintiff,
v.

Case No. 3:13-CV-00613-YY
OPINION AND ORDER

LEGACY HEALTH,
Defendant.

YOU, Magistrate Judge:
In cross-motions, defendant Legacy Health (“Legacy”) moves to dismiss this case for
lack of subject matter jurisdiction or, alternatively to disqualify plaintiff Gregory Benton
(“Benton”) from the court’s pro bono program, and Benton seeks to have this court appoint a
new pro bono attorney to assist him in taking this case to trial. For the reasons that follow,
Legacy’s motion to dismiss is denied, its alternative motion is granted, and Benton’s request for
appointment of pro bono counsel is denied.1
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1

All parties have consented to allow a Magistrate Judge to enter final orders and judgment in
this case in accordance with FRCP 73 and 28 USC § 636(c). ECF #138.
1 – OPINION AND ORDER

I.

Motion to Dismiss for Lack of Jurisdiction
A.

Procedural Background

Benton, proceeding pro se, filed this case nearly five years ago. In his First Amended
Complaint (ECF #12), and again in his Second Amended Complaint (ECF #39), Benton included
claims against Legacy security guards under the Americans with Disabilities Act (“ADA”) and
against Portland Police Officer Christopher McDonald (“Officer McDonald”) under 42 USC §
1983. He asserted federal question jurisdiction based on those claims. He also alleged a battery
claim against Legacy under state law and asserted supplemental jurisdiction over that claim.
The ADA claim was premised upon Benton’s contention that a Legacy security guard
refused to assist him in making a phone call to arrange transportation to leave the hospital. The
battery claim was premised upon the conduct of Legacy security guards in attempting to remove
Benton from Legacy property. The § 1983 claim was against Officer McDonald, the Portland
police officer who responded to the scene and allegedly threw Benton to the ground when
Benton stood up and started to leave while Officer McDonald was talking to Legacy’s security
guards.
After several preliminary scheduling conferences, followed by a stay, this case was
reopened and the court appointed pro bono counsel to assist Benton (ECF #77) in June 2016.
Nearly a year later, and with the assistance of pro bono counsel, Benton filed a Third Amended
Complaint (ECF #106), which eliminated the ADA claim and left only a battery claim against
Legacy’s security guards and the § 1983 claim against Officer McDonald. Legacy responded to
the Third Amended Complaint by filing three counterclaims against Benton for abuse of process,
wrongful initiation of civil proceedings, and fraud. Legacy Health’s Answer, Affirmative
Defenses, and Counterclaims to Plaintiff’s Third Amended Complaint (“Legacy’s Answer”) 9-14

2 – OPINION AND ORDER

(ECF #108). This court dismissed Legacy’s counterclaims on October 12, 2017. Findings and
Recommendations (August 11, 2017), ECF #128, adopted by Order (October 12, 2017), ECF
#139.
On December 12, 2017, this court granted Officer McDonald’s Motion for Summary
Judgment, leaving for trial only Benton’s battery claim.
B.

Discretionary Dismissal Under 28 USC § 1367(c)

Legacy contends that this case should be dismissed for lack of subject matter jurisdiction
because there are no remaining federal claims. Legacy has always denied that the battery claim
against its security guards is premised on the same operative facts as the § 1983 claim against
Officer McDonald and that this court lacks supplemental jurisdiction. Answer 2, ECF #108.
Federal courts have supplemental jurisdiction over state law claims that are “so related”
to the claims over which the court has original jurisdiction that “they form part of the same case
or controversy under Article III of the United States Constitution.” 28 USC § 1367(a). “A state
law claim is part of the same case or controversy when it shares a ‘common nucleus of operative
fact’ with the federal claims and the state and federal claims would normally be tried together.”
Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (citations omitted).
This court has no difficulty concluding that the state law claim against Legacy shares a
common nucleus of operative fact with the § 1983 claim that Benton alleged against Officer
McDonald. Officer McDonald responded to the scene and was in the process of investigating the
encounter between Benton and Legacy’s security guards when the encounter that formed the
basis for the § 1983 claim against Officer McDonald took place. Essentially, it was a
continuation of the same encounter involving an alleged trespass by Benton on Legacy property.
The facts of the encounter with Officer McDonald could not be told without discussing the

3 – OPINION AND ORDER

encounter with Legacy’s security guards, given that Benton had been placed in handcuffs by
Legacy’s security guards and remained in handcuffs during the encounter with Officer
McDonald.
Legacy insists that the ADA claim was baseless and the § 1983 claim was frivolous, and
urges this court to decline to exercise its supplemental jurisdiction and dismiss this case. This
court has discretion to decline to exercise supplemental jurisdiction if it “has dismissed all claims
over which it has original jurisdiction.” 28 USC § 1367(c)(3). Legacy contends that this court
should decline to exercise its supplemental jurisdiction because, when it granted Officer
McDonald’s motion for summary judgment, it dismissed the only claim over which it had
original jurisdiction. Legacy also strenuously argues that Benton has perpetrated a fraud for
years and wasted countless judicial resources in doing so.2
However, it is not this court’s role to decide the facts surrounding Benton’s battery claim.
This court’s role is to engage in a pragmatic and case-specific evaluation to discern whether the
values of economy, convenience, fairness, and comity would be best served by declining to
exercise supplemental jurisdiction. Pure Wafer Inc. v. City of Prescott, 845 F.3d 943, 960 (9th
Cir. 2017) (citations omitted).
2

According to Legacy, the two federal claims were premised on the false representation that
Legacy’s employees refused to help Benton make a phone call and a false representation about
the force Officer McDonald used in stopping Benton from leaving the scene. Legacy also
contends that Benton’s single remaining claim is based on blatant fabrications by Benton that
Legacy’s security guards used violent wrestling moves to subdue Benton and place him in
handcuffs. In support, Legacy cites what it contends is dishonest and scheming conduct
predating the encounter with Legacy’s security guards that proves Benton hatched a plan to sue
Legacy. Legacy also cites the testimony of the paramedics who examined Benton at the scene,
as well as the lack of entries in the hospital stay following immediately on the heels of the
encounter that forms the basis of this case. Because neither the paramedics nor the hospital staff
documented any evidence of head trauma, and because the only entries in the relevant records
indicate that the persons who examined Benton believed the issue was either behavioral or
psychological, Legacy contends Benton’s claim of battery fails and is simply part and parcel of
his planned scheme to sue Legacy.
4 – OPINION AND ORDER

This court has carefully considered Legacy’s arguments and Benton’s letter response, as
well as the complete litigation history of this case. The court notes this case has been pending
for nearly five years and, with the assistance of prior pro bono counsel, discovery has been
completed. The case is ready for trial on a single claim for battery. Thus, the better course, both
for the parties and for the judicial systems of this state (both federal and state) is for this court to
exercise its discretion and retain this case for trial. Any other course of action would merely
shift the burden of restarting the same litigation to the state court system, and require that court
system to become familiar with a case that has already been developed and is nearly concluded
in federal court.
II.

Request for Pro Bono Counsel
In response to Legacy’s motion and the recent withdrawal of the latest pro bono counsel,

Benton filed a Motion for Pro Bono Representation (ECF #156). In a letter submitted with his
motion, Benton denies Legacy’s allegations, and asserts that he requires the assistance of an
attorney to proceed to trial.
“Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d
965, 969 (9th Cir. 2009). However, in its discretion, the court may under “exceptional
circumstances” appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).
Id. In determining whether “exceptional circumstances” exist, the court must consider “the
likelihood of success on the merits as well as the ability of the petitioner to articulate his claims
pro se in light of the complexity of the legal issues involved.” Id. (quoting Weygandt v. Look,
718 F.2d 952, 954 (9th Cir.1983)). “Neither of these considerations is dispositive and instead
must be viewed together.” Id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
Cir.1986)).

5 – OPINION AND ORDER

Benton had the assistance of pro bono counsel from May 8, 2015 (ECF #60), until June
9, 2016 (ECF #75), while his case was stayed. He again had pro bono counsel from June 20,
2016 (ECF #79), until January 22, 2018 (ECF #152), during which time his attorney assisted him
in amending his pleadings, engaging in discovery (including multiple depositions), and
presenting and defending dispositive motions. His latest pro bono attorney filed a motion to
withdraw on January 10, 2018 (ECF #149), which was granted after a hearing on January 22,
2018 (ECF #152).
This court is not convinced that this is one of those “exceptional circumstances” for
which the court should appoint counsel. The sole remaining claim for trial is battery, and the
trial will revolve around the truth or falsity of Benton’s allegations regarding what transpired
during a single brief encounter when security guards attempted to remove Benton from Legacy
property. Legacy has proffered evidence pertaining to Benton’s likelihood of succeeding on the
merits—in particular, the lack of medical evidence to corroborate his injuries and testimony
showing Benton had a scheme to sue Legacy. Moreover, as evidenced both by his success in
initially pursuing this case pro se, and by his recent response to the pending motion, Benton is
capable of articulating his position and objecting when necessary to protect his interests.
Other developments in this case also convince the court that requesting another attorney
to accept pro bono appointment will place that attorney in an untenable position. The record
reveals that Legacy contacted Benton’s previous pro bono attorney, threatening to move for
sanctions against both Benton and his pro bono attorney based on the evidence it has adduced.
This prompted Benton’s attorney to seek withdrawal. In the event this court were to find another
attorney willing to accept appointment, there is every reason to believe that this case could and
would successively end up right back in the same posture it is in today, with Benton

6 – OPINION AND ORDER

unrepresented due to withdrawal of the newly-appointed pro bono attorney. This would
constitute a serious misuse of the court’s pro bono program, especially in a case such as this
where the issues left for trial are so straightforward.
ORDER
For the reasons stated above, defendant’s motion to dismiss for lack of subject matter
jurisdiction (ECF #153) is DENIED, defendant’s alternative motion to disqualify plaintiff from
the pro bono program (ECF #153) is GRANTED, and plaintiff’s motion for pro bono
representation (ECF #156) is DENIED.
IT IS SO ORDERED.
Dated this 5th day of March, 2018.

_/s/Youlee Yim You
Youlee Yim You
United States Magistrate Judge

7 – OPINION AND ORDER