James Michael Recca v. Omaha Police Department Defendant Randy Pignotti, individual capacity

United States Court of Appeals
For the Eighth Circuit
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No. 20-2560
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James Michael Recca
lllllllllllllllllllllPlaintiff - Appellant
v.
Omaha Police Department
lllllllllllllllllllllDefendant
Randy Pignotti, individual capacity; Joseph Richter, (2019) individual capacity
lllllllllllllllllllllDefendants - Appellees
Erik P. Forehead; Heidi L. Altic; Michael Oliver
lllllllllllllllllllllDefendants
Mike Nass, (1886) individual capacity
lllllllllllllllllllllDefendant - Appellee
Actual K-9 Dog; Jane and John Does, any and all
lllllllllllllllllllllDefendants
Conrad Hansen, (2043) individual capacity
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: April 27, 2021
Filed: June 4, 2021
[Unpublished]
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Before GRUENDER, MELLOY, and KELLY, Circuit Judges.
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PER CURIAM.
Nebraska inmate James Recca appeals following the district court’s1 adverse
grant of summary judgment in his 42 U.S.C. § 1983 action.2
We conclude that the district court did not abuse its discretion in denying
Recca’s requests for appointment of counsel. See Ward v. Smith, 721 F.3d 940, 942
(8th Cir. 2013) (per curiam) (providing the standard of review). “There is no
constitutional or statutory right to appointed counsel in civil cases.” Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). A district court “may request an
attorney to represent” an indigent civil litigant, 28 U.S.C. § 1915(e)(1), but it has a
“good deal of discretion” in deciding whether to do so, Chambers v. Pennycook, 641
1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
2Although Recca’s notice of appeal (NOA) was not received by the district
court within the requisite time to appeal, we conclude it was timely based on Recca’s
certificate of service indicating he mailed the NOA within the time to appeal. See
Van Orman v. Purkett, 43 F.3d 1201, 1202 (8th Cir. 1994) (giving appellant benefit
of prison mailbox rule where certificate of service showed date prisoner deposited
NOA in prison mail system).
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F.3d 898, 909 (8th Cir. 2011). Relevant criteria for determining whether counsel
should be requested include the factual and legal complexity of the case, the
plaintiff’s ability to investigate the facts and to present the claims, and the presence
or absence of conflicting testimony. Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996).
The district court noted that it considered these factors each time it denied without
prejudice Recca’s requests for appointment of counsel. We find no abuse of
discretion in these denials.
First, as for the complexity factors, the district court found, and Recca himself
eventually asserted, that this was a “relatively straightforward excessive force case.”
We agree. See, e.g., Royal v. Doe, 19 F. App’x 455, 456 (8th Cir. 2001) (per curiam);
Chambers, 641 F.3d at 907-09; Fletcher v. Grynkewicz, 644 F. App’x 167, 170-71
(3d Cir. 2016).
Second, the record before the district court suggested Recca had the ability to
investigate the facts. For instance, Recca attached a number of exhibits to his
complaint, including police reports and medical records, to support his allegations.
See McNeil v. Lowney, 831 F.2d 1368, 1372 (7th Cir. 1987). Additionally, in his
second motion for appointment of counsel, Recca indicated that he was aware of and
was pursuing discovery tools available to him (explicitly mentioning requests for the
production of documents and interrogatories) to investigate additional facts.
Third, the record before the district court suggested Recca had the ability to
present his claims, at least through the discovery and summary-judgment stages of the
litigation. Recca’s pro se filings are generally well-written. See Ward, 721 F.3d at
943; Nachtigall v. Class, 48 F.3d 1076, 1082 (8th Cir. 1995). His discovery
responses, in which he denied various requests for admission and objected on
relevancy grounds to a number of other discovery requests, reinforce the impression
that he was “capable of self-representation” through these stages of the litigation. See
McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). Further reinforcing this
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impression, he moved for an extension of time under Federal Rule of Civil Procedure
6(b) to respond to the appellees’ discovery requests, suggesting both an awareness of
the procedural rules relevant to his case and an ability to comply with those rules to
avoid inadvertently defaulting his claims. See Fed. R. Civ. P. 36(a)(3); see also
Sanders v. Holloway, 95 F. App’x 842, 844 (8th Cir. 2004) (per curiam).
Additionally, in his third request for appointment of counsel, Recca quoted from and
cited recent authority bearing on the appointment-of-counsel question, suggesting his
capacity for doing legal research to support his claims and arguments.
Fourth, as for the presence or absence of disputed testimony, while it seems
that this case ultimately would have turned on resolving the dispute between Recca’s
version of events and the appellees’ version of events as well as a credibility
assessment of the parties had the case proceeded to trial, it had not yet progressed to
that stage. Thus, this factor does not weigh heavily in the analysis. See Johnson v.
Williams, 788 F.2d 1319, 1323 (8th Cir. 1986) (“[T]he weight to be given any one
factor will vary with the case.”); Rager v. Augustine, 760 F. App’x 947, 949-50 (11th
Cir. 2019) (per curiam) (discounting this factor where “the district court dismissed
[the] claims at the summary judgment and dismissal stages, before any trial skills
were necessary”).
As a prisoner, Recca understandably faced challenges representing himself, but
“most indigent prisoners will face similar challenges.” See Patterson v. Kelley, 902
F.3d 845, 850 (8th Cir. 2018).3 On this record, we conclude that the district court did
3The dissent points out that Recca faced heightened challenges because in
October 2019 (nearly two months after discovery had begun) he was transferred to
the Community Correctional Center in Lincoln, Nebraska, where Recca reported he
could access the law library for only two hours per week. We note that Recca had
been transferred back to the Nebraska State Penitentiary more than a month before
the appellees moved for summary judgment, where it does not appear that he faced
such access restrictions. Additionally, he indicated that legal aid was available in the
law library at the Nebraska State Penitentiary.
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not abuse its “considerable discretion” in denying Recca’s requests for appointment
of counsel. See Ward, 721 F.3d at 943.
Having carefully reviewed the record, we also conclude that summary
judgment was proper. See Roberson v. Hayti Police Dep’t, 241 F.3d 992, 994 (8th
Cir. 2001) (reviewing grant of summary judgment de novo).
Accordingly, we affirm. See 8th Cir. R. 47B.
KELLY, Circuit Judge, dissenting.
I would reverse the district court’s judgment and remand for appointment of
counsel. Though Recca’s filings are generally well-written, the record nevertheless
suggests he was unable to adequately investigate and present his claims. For one, it
appears that Recca was “confused as to proper procedure.” Wiggins v. Sargent, 753
F.2d 663, 668 (8th Cir. 1985); see also id. (explaining that “district court should not
have denied the inmates’ request for counsel” where they “present[ed] a colorable
claim for relief” and it was “clear that they are indigent”). Significantly, he failed to
respond to the defendants’ statement of material facts, which the district court
“considered an admission for purposes of deciding” the defendants’ motion for
summary judgment. Recca v. Pignotti, 456 F. Supp. 3d 1154, 1159 (D. Neb. 2020)
(citing Fed. R. Civ. P. 56(e)(2)). Because Recca had until that point “diligently
pursued his lawsuit to the best of his ability,” Brown v. Frey, 806 F.2d 801, 804 (8th
Cir. 1986), his failure to respond suggests a misunderstanding of the consequences
of that failure and of summary judgment procedure generally. See Williams v. Carter,
10 F.3d 563, 566 (8th Cir. 1993) (“[Prisoner’s] evident confusion with respect to his
witness lists and compliance with . . . customary pre-trial procedures made it clear
how difficult it was for him to proceed in this matter without counsel.”).
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Moreover, though he expressed a desire to do so in his repeated requests for
counsel, it does not appear that Recca served the defendants with any discovery
requests nor requested leave to take any depositions. Overall, his filings suggest that
he either did not know that he could conduct discovery on his own, was logistically
unable to do so, or did not understand that his claims hinged on more than just
documentary evidence. See, e.g., Dist. Ct. Docket Nos. 44 (Feb. 24, 2020) & 37
(Dec. 26, 2019). No doubt contributing to Recca’s struggles is the fact that he was
transferred in October 2019 to the Community Correctional Center in Lincoln, where
he could access the law library for only two hours per week. See Dist. Ct. Docket No.
30, at 1 (Oct. 10, 2019); see also Dist. Ct. Docket No. 41, at 1-2 (Feb. 13, 2020)
(explaining that Recca was transferred to the “Diagnostic and Evaluation Center” and
that defense counsel had been unable to reach him for nearly three weeks); cf. Rayes
v. Johnson, 969 F.2d 700, 704 (8th Cir. 1992) (reversing for appointment of counsel
where inmate “lack[ed] ready access to a law library,” was “unclear about his right
to obtain certain records,” and was “hampered by the restraints of the institution as
well as by his own lack of legal knowledge”). Thus, even if appointment of “counsel
may have been unwarranted early in the proceedings, the record demonstrates that as
the case progressed, [Recca] had difficulty” litigating his case, including “obtaining
and presenting admissible evidence.” Trotter v. Lawson, 636 F. App’x 371, 373 (8th
Cir. 2016) (per curiam); see also Williams, 10 F.3d at 567 (emphasizing that “[w]hen
a court has denied a motion for appointment of counsel, it should continue to be alert
to the possibility that, because of procedural complexities or other reasons, later
developments in the case may show . . . that counsel should be appointed”). These
difficulties are further indication that Recca should have been appointed counsel.
Finally, this case involves a colorable and fact-intensive claim of excessive
force against multiple defendants, as evidenced by the district court’s 25-page order
granting summary judgment on the defendants’ version of the facts. In my view, the
appointment of counsel was warranted to allow Recca to adequately develop the
record before judgment issued. I respectfully dissent.
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