Hearns v. Gonzales

Filing 73

ORDER DENYING Plaintiff's 72 Request for Telephonic Appearance, Appointment of Counsel, and Change of Venue signed by Magistrate Judge Michael J. Seng on 4/25/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMAR HEARNS,

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Plaintiff,
v.
R. GONZALEZ, et al.
Defendants.

CASE NO. 1:14-cv-01177-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S
REQUESTS FOR TELEPHONIC
APPEARANCE, APPOINTMENT OF
COUNSEL, AND CHANGE OF VENUE
(ECF No. 72)

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Plaintiff is a parolee proceeding pro se and in forma pauperis in this civil rights
action brought pursuant to 42 U.S.C. § 1983.

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This case is set to proceed to a May 26, 2017, evidentiary hearing before the

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undersigned on the issue of whether unpursued administrative remedies were available

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to Plaintiff. (ECF No. 68.)

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On April 21, 2017, Plaintiff notified the Court that he had been released from

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custody and was subject to parole conditions which precluded travel outside of Los

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Angeles County. (ECF No. 72.) He also advises that the cost of travel from Los Angeles

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County to Fresno would be prohibitively expensive and so he asked the Court to allow

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him to appear telephonically at the hearing, or to appoint an attorney to represent him at

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the hearing in his stead, or to grant Plaintiff a change of venue to the United States

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District Court for the Central District of California.

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While the Court is sympathetic to Plaintiff’s situation, it will not proceed with a

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telephonically evidentiary hearing. The issues at this hearing likely will turn on credibility

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determinations and the Court must be able to observe Plaintiff’s demeanor in person and

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under effective cross-examination.

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Furthermore, as Plaintiff has previously been advised, he does not have a right to

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appointed counsel in this case (see ECF Nos. 57 & 62), and the Court will only seek

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volunteer counsel under exceptional circumstances not present here. In any event,

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representation by an attorney would not relieve Plaintiff of the obligation to be present for

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examination and cross-examination at the hearing.

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Finally, the federal venue statute requires that a civil action, other than one based

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on diversity jurisdiction, be brought only in “(1) a judicial district where any defendant

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resides, if all defendants reside in the same State, (2) a judicial district in which a

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substantial part of the events or omissions giving rise to the claim occurred, or a

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substantial part of the property that is the subject of the action is situated, or (3) a judicial

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district in which any defendant may be found, if there is no district in which the action

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may otherwise be brought.” 28 U.S.C. § 1391(b). “For the convenience of the parties

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and witnesses, in the interest of justice, a district court may transfer any civil action to

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any other district or division where it might have been brought.” 28 U.S.C. § 1404(a).

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Plaintiff has not presented sufficient justification for a transfer of venue to the Central

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District of California.

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For the foregoing reasons, Plaintiff’s motion is DENIED, without prejudice, in its

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entirety. Plaintiff’s personal appearance in the United States District Court for the

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Eastern District of California, Fresno Division is required. The Court requests the

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assistance and/or cooperation of Plaintiff’s parole officer or other custodial authority in

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facilitating Plaintiff’s attendance at the May 26, 2017 hearing. The Court is unable to

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assist Plaintiff with the cost of travel.

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IT IS SO ORDERED.
Dated:

April 25, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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