Harris v. Macomber et al

Filing 161

ORDER signed by Magistrate Judge Deborah Barnes on 04/18/2023 DENYING the 157 Motion to Appoint Counsel and DENYING the 158 Motion for Pretrial Conference. If plaintiff wants assistance in locating inmate witnesses, within 10 days he shall file a statement with the names of witnesses. Within 10 days after plaintiff files his statement, defendants shall file a document explaining the incarceration status of each witness and listing the place of incarceration for any incarcerated witnesses. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRADY HARRIS,

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No. 2:16-cv-0830 TLN DB P

Plaintiff,

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v.

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J. MUNOZ, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding with a civil rights action under 42 U.S.C. § 1983.

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On September 30, 2022, defendants’ motions for summary judgment were granted in part and

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denied in part. (ECF Nos. 144, 145.) This case is now proceeding on plaintiff’s excessive force

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claims against defendants Munoz, Fong, and Williamson and on plaintiff’s failure to protect and

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excessive force claims against defendant Leavitt. On March 28, 2023, this court issued a further

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scheduling order. (ECF No. 156.) In that order, this court set deadlines for the parties to file

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pretrial statements. Plaintiff’s statement is due May 12.
Plaintiff has filed motions seeking the appointment of counsel and a pretrial scheduling

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conference. (ECF Nos. 157, 158.) It appears that plaintiff had not received a copy of the court’s

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March 28 further scheduling order at the time he mailed those motions to the court. The order

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does not contemplate holding a pretrial conference and it should provide plaintiff with

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information addressing some of his concerns. Plaintiff’s request for a pretrial conference will be

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denied.

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Plaintiff argues he is entitled to the appointment of counsel for a number of reasons,

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including: (1) he is unable to afford counsel and attorneys he contacted declined to represent

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him; (2) the issues in the case are complex, particularly because there are ten defendants and

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some are supervisors; (3) plaintiff lacks the resources and understanding to prepare a pretrial

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statement and prepare for trial; (4) plaintiff will have great difficulty locating witnesses,

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contacting them, and subpoenaing them for trial; (5) plaintiff only has library access one hour a

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week; (6) trial will be by jury; and (7) there is a great likelihood plaintiff will succeed on the

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merits.

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As plaintiff has been informed in prior orders, plaintiff has no right to counsel in this

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action. The court considers requesting the voluntary assistance of counsel only in certain

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exceptional circumstances. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional circumstances

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requires the court to evaluate the plaintiff’s likelihood of success on the merits and the ability of

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the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d

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952, 954 (9th Cir. 1983).
Plaintiff’s circumstances are not extraordinary. He faces the same hurdles faced by

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almost all indigent prisoners whose cases are heading to trial. And, plaintiff has demonstrated

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that he is quite able to litigate this action. Plaintiff has articulated and pursued his claims with

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some skill. The issues for trial are not complex – as plaintiff points out, evidence at trial will

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essentially involve a factual dispute about what occurred when plaintiff contends he was

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subjected to excessive force. Further, some of plaintiff’s reasons are based on incorrect facts.

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This case is proceeding to trial against four defendants, not ten. Each of those four defendants

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was a correctional officer so there is no issue of supervisory liability. (See ECF Nos. 118-7, 118-

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8, 118-13, 121-4.)

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This court recognizes that plaintiff may have a particularly difficult time finding and

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communicating with potential witnesses. The incident occurred in 2014. Plaintiff has since been

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transferred and it is possible inmate witnesses have as well. Some of those witnesses may have

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been released. If plaintiff provides the court with the witnesses’ names, the court will order

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defendants’ counsel to determine their incarceration status. For any incarcerated witnesses,

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defendants’ counsel shall provide their place of incarceration. To the extent any witnesses have

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been released from prison, plaintiff should look to other resources such as investigators, friends,

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or family to attempt to obtain contact information for those witnesses.

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This court expects that plaintiff will be permitted to communicate with the inmate

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witnesses. However, defendants will be given an opportunity to raise any objections to such

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communication. Defendants should note that any such objections must be supported by a

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showing of significant risk to prison security or other similarly serious risk.

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This court recognizes that communicating with inmate witnesses may be time-consuming.

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If plaintiff requires additional time to complete the pretrial statement, he may seek a limited

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extension of the deadline. That said, this court expects plaintiff to be diligent in locating and

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communicating with any witnesses.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 157) is denied.

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2. Plaintiff’s motion for a pretrial conference (ECF No. 158) is denied.

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3. If plaintiff wants assistance in locating inmate witnesses, within ten days he shall file a

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statement with the names of witnesses. Within ten days after plaintiff files his statement,

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defendants shall file a document explaining the incarceration status of each witness and listing the

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place of incarceration for any incarcerated witnesses. In addition, if defendants have any

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objections to plaintiff’s right to communicate with those incarcerated witnesses, they shall explain

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those objections. Plaintiff need not file anything in response to defendants’ filing unless ordered

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to do so by the court.

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DATED: April 18, 2023

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:9
DB Prisoner Inbox/Civil Rights/R/harr0830.pretrial mtns

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