Ewalan v. Washington State Department of Corrections et al

Filing 217

ORDER: The Court DENIES Mr. Ewalan's motion concerning remote trial participation (Dkt. # 198 ), GRANTS in part Defendant's motion to strike (Dkt. # 215 ), and DIRECTS the Clerk to seal Mr. Ewalan's motion concerning remote trial participation (Dkt. # 198 ). The Court further DENIES Mr. Ewalan's motion to continue the trial date (Dkt. # 202 ). Signed by Judge James L. Robart. **8 PAGE(S), PRINT ALL** (Joseph Ewalan, Prisoner ID: 392824) (SS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOSEPH LOCHUCH EWALAN,

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v.

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CASE NO. C20-5678JLR
ORDER

Plaintiff,

ROBERT SCHREIBER, et al.,
Defendants.

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I.

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INTRODUCTION

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Before the court are pro se Plaintiff Joseph Lochuch Ewalan’s motions (1) to order

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Defendants’ 1 remote participation at trial or, alternatively, to order Mr. Ewalan’s physical

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attendance at trial (1st Mot. (Dkt. # 198); Reply (Dkt. # 214)), and (2) to continue the

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trial date (2d Mot. (Dkt. # 202)). Defendants oppose Mr. Ewalan’s motions. (1st Resp.

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(Dkt. # 203); 2d Resp. (Dkt. # 215).) The court has considered the motions, the parties’

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Defendants are Robert Schreiber, Arlee Rothwell, Russell Dickerson, Kendra
Wakefield, and Denny Larsen.
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submissions in support of and in opposition to the motions, the relevant portions of the

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record, and the governing law. Being fully advised, the court DENIES Mr. Ewalan’s

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motions.
II.

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BACKGROUND

Acting pro se, Mr. Ewalan initiated this Section 1983 action on July 13, 2020.

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(See generally Prop. Compl. (Dkt. # 1).) Mr. Ewalan is currently incarcerated at the

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Washington State Penitentiary in Walla Walla, Washington (“WSP”).

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Mr. Ewalan has filed numerous motions to appoint counsel throughout the
pendency of this case. (See generally 7/24/20 Mot. (Dkt. # 7); 10/20/21 Mot. (Dkt. # 35);

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2/17/21 Mot. (Dkt. # 46); 4/2/21 Mot. (Dkt. # 69); 9/9/22 Mot. (Dkt. # 115).) The court

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denied each motion. (See generally 10/9/20 Order (Dkt. # 31); 11/16/20 Order (Dkt.

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# 39); 4/29/21 (Dkt. # 74); 10/17/22 (Dkt. # 121).) On February 7, 2023, however, the

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court sua sponte reconsidered its latest denial and conditionally granted Mr. Ewalan’s

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September 9, 2022 motion to appoint pro bono counsel. (See generally 2/7/23 Order

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(Dkt. # 124).) The Clerk identified pro bono counsel willing to represent Mr. Ewalan,

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and on February 16, 2023, the court appointed Brennan Johnson of Johnson Graffe Keay

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Moniz & Wick. (2/16/23 Order (Dkt. # 125) at 2.) Within months, Mr. Johnson

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withdrew at Mr. Ewalan’s request. (6/8/23 Not. (Dkt. # 134) at 1-2; 6/8/23 Order (Dkt.

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# 135) at 6 (granting withdrawal).) The court denied Mr. Ewalan’s motion to appoint a

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different pro bono attorney, concluding that Mr. Ewalan had demonstrated “ample

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confidence in his ability to litigate his own case.” (6/8/23 Order at 5; see also 5/17/23

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Mot. (Dkt. # 133).) Mr. Ewalan has since proceeded pro se. (See generally Dkt.) Trial
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is scheduled to begin in less than one month, on April 22, 2024. (See Sched. Order (Dkt.

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# 163) at 1.)

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Mr. Ewalan previously moved for an order requiring his transportation to Seattle

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for trial, which the court construed as a motion for a writ of habeas corpus ad

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testificandum and denied. (Transp. Mot. (Dkt. # 148) at 5; 10/4/23 Order (Dkt. # 159) at

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2-5 (directing “that Mr. Ewalan shall participate in trial remotely via videoconference”).)

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Mr. Ewalan moved for reconsideration, which the court similarly denied. (Recon. Mot.

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(Dkt. # 160); 10/11/23 Order (Dkt. # 161).) The court has once continued the trial date in

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this matter, doing so sua sponte. (See Sched. Order at 1 (determining that “principles of

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fairness, justice, and efficiency support a trial continuance,” and resetting the trial date

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from January 16, 2024, to April 22, 2024).)

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On March 5, 2024, the court held a status conference. (See 3/5/24 Min. Entry.)

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During that conference, Mr. Ewalan raised his concern that it would be unfair to require

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his remote participation at trial while permitting Defendants to conduct trial in person,

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stating that he identified a Ninth Circuit case supporting his position. The court invited

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Mr. Ewalan to file a motion raising the issue and citing the case he referenced. On March

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6, 2024, Mr. Ewalan filed such a motion. (See generally 1st Mot.) In addition, on March

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18, 2024, Mr. Ewalan filed a motion to continue the trial date, arguing that he is in talks

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with four lawyers who have expressed interest in representing him. (See generally 2d

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Mot.) The court issued a minute order setting an expedited briefing schedule on the

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motion to continue. (See generally 3/19/24 Min. Order (Dkt. # 205).) Both of Mr.

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Ewalan’s motions are now ripe for decision.
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III.

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The court addresses Mr. Ewalan’s motions in turn, below.

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A.

ANALYSIS

Motion Concerning Remote Participation in Trial
Mr. Ewalan argues that principles of “fairness” require the court to order

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Defendants to conduct trial remotely or, in the alternative, to permit all parties to

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participate in person. (1st Mot. at 1.) The court disagrees.

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To begin, Mr. Ewalan fails to cite any Ninth Circuit authority suggesting that a

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hybrid trial is inherently unfair. He instead expresses his mistaken understanding that the

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court, in inviting him to file the instant motion, advised that Mr. Ewalan “[didn’t] have to

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cite any authorities.” (Id. at 2.) Not so. The court expressly advised Mr. Ewalan to cite

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the Ninth Circuit case that he referenced during the March 5, 2024 status conference. Mr.

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Ewalan failed to do so, and the court can only infer that he has identified no such case.

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(See generally id.; see also Reply at 3 (Mr. Ewalan stating that he “remember[s] coming

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across” a helpful case, but “has not been successful” in finding it again).) The court’s

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research confirms its view that hybrid trials are acceptable in appropriate circumstances,

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as here where Mr. Ewalan has no absolute right to appear in person due to his

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incarceration. Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1985) (“A plaintiff in a civil

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suit who is confined in state prison at the time of a hearing has no absolute right to appear

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personally.”); see also, e.g., Thompson v. Hicks, No. C08-1065-JCC, 2012 WL

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12874936, at *1 (W.D. Wash. Sept. 9, 2012) (declining to order new trial based on

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alleged prejudice where incarcerated pro se plaintiff conducted trial by videoconference

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in Section 1983 action); Payment v. Pugh, No. C22-5569TL-GJL, 2024 WL 729278, at
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*2 (W.D. Wash. Feb. 22, 2024) (denying incarcerated plaintiff’s petition for a writ of

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habeas corpus ad testificandum requiring his transport from WSP to Seattle for a Section

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1983 trial “because videoconferencing technology will enable him to participate in the

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trial remotely”); Bluetooth SIG, Inc. v. FCA US LLC, No. C18-1493TL, 2023 WL

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346620, at *2 (W.D. Wash. Jan. 20, 2023) (explaining in a different context that, in

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general, “the hybrid trial format has become more common in the past few years”).

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Mr. Ewalan emphasizes “the value of live testimony” and argues that a hybrid trial

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would infringe his Sixth Amendment right to confront the witnesses against him. (1st

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Mot. at 2-3 (appearing to quote Fed. R. Civ. P. 43(a) advisory committee’s note to 1991

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amendment (“The importance of presenting live testimony in court cannot be

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forgotten.”)).) As Defendants correctly point out, however, Mr. Ewalan primarily is

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asking that the entire trial be conducted remotely. (Resp. at 2; see also 1st Mot. at 2

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(stating that “the current motion is not about transport, rather both parties . . . [should]

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conduct trial remotely”).) His requested relief therefore does not further the value of live,

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in-person testimony. And the Sixth Amendment’s Confrontation Clause does not apply

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to this civil matter. Dutton v. Evans, 400 U.S. 74, 97 (1970) (Harlan, J., concurring)

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(explaining that “the Confrontation Clause . . . applies only to criminal prosecutions”);

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see also U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

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right . . . to be confronted with the witnesses against him.” (emphasis added)).

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To the extent Mr. Ewalan alternatively requests an order authorizing his physical

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attendance at trial (see 1st Mot. at 1; Reply at 1, 3), the court already considered and

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ruled on this issue months ago and will not revisit it. (10/4/23 Order at 2-5 (denying
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motion for writ of habeas corpus ad testificandum); 10/11/24 Order at 4 (denying

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reconsideration of the same).)

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For the foregoing reasons, the court DENIES Mr. Ewalan’s motion concerning

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remote trial participation.

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B.

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Motion to Continue Trial
Mr. Ewalan next moves to continue the trial date to allow him time to secure a

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trial lawyer. (See generally 2d Mot.) He states that, following the parties’ recent

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unsuccessful mediation, four attorneys from his local community expressed interest in

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taking this case. (See id. at 1.) Defendants oppose the motion and move to strike it based

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on Mr. Ewalan’s improper reference to specific settlement offers during the mediation.

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(2d Resp. at 4; see also Mot. at 1.)

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The court issues scheduling orders setting trial and related dates to provide a

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reasonable schedule for the resolution of disputes. Under Federal Rule of Civil

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Procedure 16(b)(4), “[a] schedule may be modified only for good cause and with the

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judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The central inquiry under Fed. R. Civ. P.

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16(b)(4) is whether the requesting party was diligent . . . .” DRK Photo v. McGraw-Hill

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Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017). The district court may

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therefore modify the schedule “if it cannot reasonably be met despite the diligence of the

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party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

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(9th Cir. 1992) (quoting Fed. R. Civ. P. 16 advisory committee’s note to 1983

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amendment). The court may also consider “the existence or degree of prejudice” to the

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opposing party, though the focus of the inquiry remains on the moving party’s diligence.
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Id. As the moving party, Mr. Ewalan bears the burden to demonstrate good cause. See,

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e.g., Sagdai v. Travelers Home & Marine Ins. Co., No. C21-0182LK, 2022 WL

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17403445, at * 2 (W.D. Wash. Dec. 2, 2022).

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The court concludes that Mr. Ewalan has not met his burden. This matter has been

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pending for nearly four years. The court has already once continued the trial date,

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building extra time into the pretrial schedule “[i]n light of the unique complexities

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presented by this case, including but not limited to [Mr.] Ewalan’s pro se and

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incarcerated status.” (Sched. Order at 1.) There are no new or different circumstances

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that now warrant an eleventh-hour trial continuance. That Mr. Ewalan claims to be “in

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conversation with” four attorneys does not establish good cause, as Mr. Ewalan could

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have independently secured representation months or even years ago and therefore has

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not demonstrated diligence. (Mot. at 1.) Mr. Ewalan first received a trial date on August

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22, 2023 (8/22/23 Min. Order (Dkt. # 147) at 1), and he has been aware of the current

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trial date since approximately October 16, 2023 (Sched. Order at 1)—allowing more than

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ample time to prepare for trial. The court has diligently managed the docket in this case

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to ensure this matter proceeds to trial as planned. Defendants would be prejudiced by the

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requested continuance as they are well into their trial preparations, having served witness

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subpoenas and made travel and lodging arrangements. (Fowler Decl. (Dkt. # 216) ¶ 5.)

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As it stands, a trial continuance is not warranted. The court therefore DENIES

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Mr. Ewalan’s motion to continue the trial date. In addition, the court GRANTS in part

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Defendants’ motion to strike. The court agrees with Defendants that Mr. Ewalan

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improperly filed a pleading containing inadmissible settlement negotiation details. (See
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Mot. at 4.) Rather than striking the pleading, however, the court will arrange for the

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document to be sealed.
IV.

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CONCLUSION

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In sum, the court DENIES Mr. Ewalan’s motion concerning remote trial

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participation (Dkt. # 198), GRANTS in part Defendant’s motion to strike (Dkt. # 215),

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and DIRECTS the Clerk to seal Mr. Ewalan’s motion concerning remote trial

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participation (Dkt. # 198). The court further DENIES Mr. Ewalan’s motion to continue

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the trial date (Dkt. # 202).

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Dated this 26th day of March, 2024.

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A

JAMES L. ROBART
United States District Judge

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