McClintock v. Colosimo, et al

Filing 96

ORDER signed by Magistrate Judge Deborah Barnes on 5/25/2017 DENYING 93 Request for Court Order on Defendants' Litigation Office Coordinator without prejudice and DENYING 94 Motion to Appoint Counsel. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN McCLINTOCK,

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No. 2:13-cv-0264 TLN DB P

Plaintiff,
v.

ORDER

COLOSIMO, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff alleges defendants Colosimo and Beshears violated his

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Eighth Amendment rights to be free of cruel and unusual punishment when they allowed a door

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to remain closed on him. After resolution of defendants’ summary judgment motion, the court

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issued a further scheduling order setting a deadline of June 15, 2017 for plaintiff’s pretrial

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statement.

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Before the court are two motions filed by plaintiff in which he seeks the appointment of

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counsel to assist in trial preparation and a court order requiring the prison to permit plaintiff to

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communicate with potential witnesses, some of whom are incarcerated. In a letter to the court

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dated April 21, 2017, plaintiff states that he requested from the litigation office “instructions for

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third-party waiver to obtain affidavits from material witnesses.” (ECF No. 92.) Plaintiff informs

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the court that due to defendants’ conduct during discovery, he anticipates they will “create
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barriers to obtain witnesses” and he intends to file a motion for an order requiring the prison to

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permit plaintiff to communicate with potential witnesses. However, plaintiff does not describe

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any barriers he had, in fact, encountered.
On May 1, plaintiff filed a request that the court order the prison’s litigation office to

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permit him to communicate with other inmates and staff regarding his case. (ECF No. 93.)

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However, again, plaintiff does not state that he was denied the right to do so. Plaintiff also

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requests video conferencing for himself and incarcerated witnesses for pretrial and trial events.

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Also on May 1, plaintiff filed a motion for the appointment of counsel. Primarily,
plaintiff contends that he requires counsel due to the complexities of trial.

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If plaintiff wishes to introduce the testimony of incarcerated witnesses at trial, his pretrial

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statement must include an affidavit explaining the substance of any prospective witnesses’

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testimony and informing the court whether or not the witness is willing to attend trial. (See ECF

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No. 91 at 2.) Therefore, plaintiff may need to communicate with incarcerated potential witnesses

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in order to prepare his statement. While a similar affidavit is not necessary for the testimony of

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witnesses who are not incarcerated, the court recognizes that plaintiff may need to communicate

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with them as well to prepare for trial. Plaintiff has not shown that he has been denied the right to

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communicate with incarcerated or other witnesses. Therefore, the court will deny his request for

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an order requiring the prison to permit that communication. If plaintiff has made the request, and

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has been denied, he may then seek the court’s assistance. To do so, plaintiff must identify each

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person he seeks to communicate with and explain why he feels each potential witness’s testimony

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is relevant to his case. If difficulties in communicating with witnesses are time-consuming,

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plaintiff may seek an extension of the deadline for filing his pretrial statement.
Plaintiff’s request for the appointment of counsel will be denied. As plaintiff has been

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informed previously, the court will only appoint counsel upon a showing of exceptional

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circumstances. (See Orders dated July 29, 2014; April 8, 2016.) The facts that preparing for and

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conducting a trial may be difficult are not exceptional circumstances.

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Finally, plaintiff is advised that his request for video conferencing is premature. Neither a

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pretrial conference nor trial have been scheduled at this time. The methods for taking any in-

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court testimony can be addressed at a later date.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1.

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Plaintiff’s May 1, 2017 “Request for Court Order on Defendants’ Litigation Office
Coordinator” (ECF No. 93) is denied without prejudice; and

2. Plaintiff’s May 1, 2017 motion for appointment of counsel (ECF No. 94) is denied.
Dated: May 25, 2017

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DLB:9
DLB1/prisoner-civil rights/mccl0267.wit comm

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