Carson #193689 v. Riley et al

Filing 102

MEMORANDUM OPINION AND ORDER denying 69 plaintiff's motion to appoint counsel ; denying 94 plaintiff's motion to allow another prisoner to assist him at trial ; denying 97 and 101 plaintiff's motions to compel; granting 99 plaintiff's motion for exclusion of witnesses ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb) Modified text on 7/1/2009 (slk).

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

A N T O N IO CARSON, P l a in tif f , F ile No. 2:07-CV-45 v. H O N . ROBERT HOLMES BELL G E R A L D RILEY, et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER T h is matter comes before the Court on five pretrial motions filed by Plaintiff Antonio C a rs o n . Plaintiff's first motion is a motion for appointment of counsel. (Dkt. No. 69.) As the M a g is tra te Judge noted in his order denying Plaintiff's first motion for appointment of c o u n se l, appointment of counsel is a privilege that is justified only in exceptional c irc u m s ta n c es , after consideration of the complexity of the issues, the procedural posture of th e case, and the plaintiff's ability to represent himself. (Dkt. No. 26) (citing Lavado v. K e o h a n e , 992 F.2d 601, 604-05 (6th Cir. 1993)). Plaintiff contends that he needs counsel to assist him in obtaining documents because h e has a limited education, he is confined in segregation, and Defendants are represented by a team of attorneys. Plaintiff's circumstances are not unlike those of most prisoner plaintiffs w h o appear before this Court. The trial in this case involves the single issue of whether

P l a in t if f was denied a strict vegetarian diet in violation of his constitutional rights. The C o u rt is satisfied that Plaintiff will be able to articulate the factual basis of his claim at the b e n c h trial. The Court is also satisfied that with some preparation before trial he will be able to effectively examine and cross-examine witnesses. Accordingly, the Court will deny his m o tio n for appointment of counsel. Plaintiff's second motion requests that another prisoner, Juivonne Littlejohn, be a llo w e d to assist him at trial. (Dkt. No. 94.) Plaintiff contends that Mr. Littlejohn has a ss is te d Plaintiff with all of his court filings and that Plaintiff does not have the knowledge o r skill to conduct a trial on his own. The Court does not doubt that Mr. Littlejohn has p ro v id e d great assistance to Plaintiff. Nevertheless, the Court is satisfied that the issues for trial are not complicated, and that Plaintiff will be far better served if he represents himself a t this bench trial and presents his case based on his own knowledge of the facts rather than d e p e n d in g on the legal assistance of another prisoner. Accordingly, Plaintiff's motion for p ris o n e r assistance at trial will be denied. Plaintiff's third and fourth motions seek to compel Defendants to produce exhibits. (D k t. Nos. 97, 101). Plaintiff requests that THE Court order defense counsel to produce a c o p y of the final pretrial order list of exhibits to each Defendant and Plaintiff. Plaintiff does n o t explain the need for this action and the Court is aware of none. Plaintiff also seeks to m a k e sure that each witness has a copy of all of Plaintiff's exhibits if they are to testify by w a y of video teleconferencing. The Court is not aware of what witnesses will be testifying

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b y video teleconferencing, nor is the Court aware of what exhibits any such witness will need f o r purposes of testifying. The issue of how to present exhibits to witnesses who testify via v id e o teleconferencing can be determined at the time of trial. Plaintiff also seeks an order c o m p e llin g Defendants to produce copies of four trial exhibits identified by Plaintiff. D e f e n d a n ts are not responsible for producing Plaintiff's trial exhibits. The Court previously c la rif ie d that Defendants are not required to obtain a copy of the ACA Standards Handbook to insert into the joint exhibit book. (Dkt. No. 101). Defense counsel has gathered Plaintiffs o th e r exhibits for the joint exhibit book which will be available for Plaintiff's use at trial. T h e Court will not compel further production of Plaintiff's own exhibits. Accordingly, P la in tif f 's motions to compel production of exhibits will be denied. P la in tif f 's fifth motion is a motion for exclusion of witnesses pursuant to Rule 615 of th e Federal Rules of Evidence. (Dkt. No. 99.) Exclusion of witnesses other than those

id e n tif ie d under the rule is mandatory upon request of a party. Accordingly, I T IS HEREBY ORDERED that Plaintiff's motion for appointment of counsel. ( D k t . No. 69) is DENIED. I T IS FURTHER ORDERED that Plaintiff's motion to allow another prisoner to a s s is t him at trial (Dkt. No. 94) is DENIED. I T IS FURTHER ORDERED that Plaintiff's motions to compel Defendants to p ro d u c e exhibits (Dkt. Nos. 97, 101) are DENIED.

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I T IS FURTHER ORDERED that Plaintiff's motion for exclusion of witnesses ( D k t . No. 99) is GRANTED.

Dated: July 1, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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