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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JOSEPH LOCHUCH EWALAN, 11 v. 12 13 CASE NO. C20-5678JLR ORDER Plaintiff, ROBERT SCHREIBER, et al., Defendants. 14 I. 15 INTRODUCTION 16 Before the court are pro se Plaintiff Joseph Lochuch Ewalan’s motions (1) to order 17 Defendants’ 1 remote participation at trial or, alternatively, to order Mr. Ewalan’s physical 18 attendance at trial (1st Mot. (Dkt. # 198); Reply (Dkt. # 214)), and (2) to continue the 19 trial date (2d Mot. (Dkt. # 202)). Defendants oppose Mr. Ewalan’s motions. (1st Resp. 20 (Dkt. # 203); 2d Resp. (Dkt. # 215).) The court has considered the motions, the parties’ 21 22 1 Defendants are Robert Schreiber, Arlee Rothwell, Russell Dickerson, Kendra Wakefield, and Denny Larsen. ORDER - 1 1 submissions in support of and in opposition to the motions, the relevant portions of the 2 record, and the governing law. Being fully advised, the court DENIES Mr. Ewalan’s 3 motions. II. 4 5 BACKGROUND Acting pro se, Mr. Ewalan initiated this Section 1983 action on July 13, 2020. 6 (See generally Prop. Compl. (Dkt. # 1).) Mr. Ewalan is currently incarcerated at the 7 Washington State Penitentiary in Walla Walla, Washington (“WSP”). 8 9 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); 10 2/17/21 Mot. (Dkt. # 46); 4/2/21 Mot. (Dkt. # 69); 9/9/22 Mot. (Dkt. # 115).) The court 11 denied each motion. (See generally 10/9/20 Order (Dkt. # 31); 11/16/20 Order (Dkt. 12 # 39); 4/29/21 (Dkt. # 74); 10/17/22 (Dkt. # 121).) On February 7, 2023, however, the 13 court sua sponte reconsidered its latest denial and conditionally granted Mr. Ewalan’s 14 September 9, 2022 motion to appoint pro bono counsel. (See generally 2/7/23 Order 15 (Dkt. # 124).) The Clerk identified pro bono counsel willing to represent Mr. Ewalan, 16 and on February 16, 2023, the court appointed Brennan Johnson of Johnson Graffe Keay 17 Moniz & Wick. (2/16/23 Order (Dkt. # 125) at 2.) Within months, Mr. Johnson 18 withdrew at Mr. Ewalan’s request. (6/8/23 Not. (Dkt. # 134) at 1-2; 6/8/23 Order (Dkt. 19 # 135) at 6 (granting withdrawal).) The court denied Mr. Ewalan’s motion to appoint a 20 different pro bono attorney, concluding that Mr. Ewalan had demonstrated “ample 21 confidence in his ability to litigate his own case.” (6/8/23 Order at 5; see also 5/17/23 22 Mot. (Dkt. # 133).) Mr. Ewalan has since proceeded pro se. (See generally Dkt.) Trial ORDER - 2 1 is scheduled to begin in less than one month, on April 22, 2024. (See Sched. Order (Dkt. 2 # 163) at 1.) 3 Mr. Ewalan previously moved for an order requiring his transportation to Seattle 4 for trial, which the court construed as a motion for a writ of habeas corpus ad 5 testificandum and denied. (Transp. Mot. (Dkt. # 148) at 5; 10/4/23 Order (Dkt. # 159) at 6 2-5 (directing “that Mr. Ewalan shall participate in trial remotely via videoconference”).) 7 Mr. Ewalan moved for reconsideration, which the court similarly denied. (Recon. Mot. 8 (Dkt. # 160); 10/11/23 Order (Dkt. # 161).) The court has once continued the trial date in 9 this matter, doing so sua sponte. (See Sched. Order at 1 (determining that “principles of 10 fairness, justice, and efficiency support a trial continuance,” and resetting the trial date 11 from January 16, 2024, to April 22, 2024).) 12 On March 5, 2024, the court held a status conference. (See 3/5/24 Min. Entry.) 13 During that conference, Mr. Ewalan raised his concern that it would be unfair to require 14 his remote participation at trial while permitting Defendants to conduct trial in person, 15 stating that he identified a Ninth Circuit case supporting his position. The court invited 16 Mr. Ewalan to file a motion raising the issue and citing the case he referenced. On March 17 6, 2024, Mr. Ewalan filed such a motion. (See generally 1st Mot.) In addition, on March 18 18, 2024, Mr. Ewalan filed a motion to continue the trial date, arguing that he is in talks 19 with four lawyers who have expressed interest in representing him. (See generally 2d 20 Mot.) The court issued a minute order setting an expedited briefing schedule on the 21 motion to continue. (See generally 3/19/24 Min. Order (Dkt. # 205).) Both of Mr. 22 Ewalan’s motions are now ripe for decision. ORDER - 3 1 III. 2 The court addresses Mr. Ewalan’s motions in turn, below. 3 4 A. ANALYSIS Motion Concerning Remote Participation in Trial Mr. Ewalan argues that principles of “fairness” require the court to order 5 Defendants to conduct trial remotely or, in the alternative, to permit all parties to 6 participate in person. (1st Mot. at 1.) The court disagrees. 7 To begin, Mr. Ewalan fails to cite any Ninth Circuit authority suggesting that a 8 hybrid trial is inherently unfair. He instead expresses his mistaken understanding that the 9 court, in inviting him to file the instant motion, advised that Mr. Ewalan “[didn’t] have to 10 cite any authorities.” (Id. at 2.) Not so. The court expressly advised Mr. Ewalan to cite 11 the Ninth Circuit case that he referenced during the March 5, 2024 status conference. Mr. 12 Ewalan failed to do so, and the court can only infer that he has identified no such case. 13 (See generally id.; see also Reply at 3 (Mr. Ewalan stating that he “remember[s] coming 14 across” a helpful case, but “has not been successful” in finding it again).) The court’s 15 research confirms its view that hybrid trials are acceptable in appropriate circumstances, 16 as here where Mr. Ewalan has no absolute right to appear in person due to his 17 incarceration. Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1985) (“A plaintiff in a civil 18 suit who is confined in state prison at the time of a hearing has no absolute right to appear 19 personally.”); see also, e.g., Thompson v. Hicks, No. C08-1065-JCC, 2012 WL 20 12874936, at *1 (W.D. Wash. Sept. 9, 2012) (declining to order new trial based on 21 alleged prejudice where incarcerated pro se plaintiff conducted trial by videoconference 22 in Section 1983 action); Payment v. Pugh, No. C22-5569TL-GJL, 2024 WL 729278, at ORDER - 4 1 *2 (W.D. Wash. Feb. 22, 2024) (denying incarcerated plaintiff’s petition for a writ of 2 habeas corpus ad testificandum requiring his transport from WSP to Seattle for a Section 3 1983 trial “because videoconferencing technology will enable him to participate in the 4 trial remotely”); Bluetooth SIG, Inc. v. FCA US LLC, No. C18-1493TL, 2023 WL 5 346620, at *2 (W.D. Wash. Jan. 20, 2023) (explaining in a different context that, in 6 general, “the hybrid trial format has become more common in the past few years”). 7 Mr. Ewalan emphasizes “the value of live testimony” and argues that a hybrid trial 8 would infringe his Sixth Amendment right to confront the witnesses against him. (1st 9 Mot. at 2-3 (appearing to quote Fed. R. Civ. P. 43(a) advisory committee’s note to 1991 10 amendment (“The importance of presenting live testimony in court cannot be 11 forgotten.”)).) As Defendants correctly point out, however, Mr. Ewalan primarily is 12 asking that the entire trial be conducted remotely. (Resp. at 2; see also 1st Mot. at 2 13 (stating that “the current motion is not about transport, rather both parties . . . [should] 14 conduct trial remotely”).) His requested relief therefore does not further the value of live, 15 in-person testimony. And the Sixth Amendment’s Confrontation Clause does not apply 16 to this civil matter. Dutton v. Evans, 400 U.S. 74, 97 (1970) (Harlan, J., concurring) 17 (explaining that “the Confrontation Clause . . . applies only to criminal prosecutions”); 18 see also U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the 19 right . . . to be confronted with the witnesses against him.” (emphasis added)). 20 To the extent Mr. Ewalan alternatively requests an order authorizing his physical 21 attendance at trial (see 1st Mot. at 1; Reply at 1, 3), the court already considered and 22 ruled on this issue months ago and will not revisit it. (10/4/23 Order at 2-5 (denying ORDER - 5 1 motion for writ of habeas corpus ad testificandum); 10/11/24 Order at 4 (denying 2 reconsideration of the same).) 3 For the foregoing reasons, the court DENIES Mr. Ewalan’s motion concerning 4 remote trial participation. 5 B. 6 Motion to Continue Trial Mr. Ewalan next moves to continue the trial date to allow him time to secure a 7 trial lawyer. (See generally 2d Mot.) He states that, following the parties’ recent 8 unsuccessful mediation, four attorneys from his local community expressed interest in 9 taking this case. (See id. at 1.) Defendants oppose the motion and move to strike it based 10 on Mr. Ewalan’s improper reference to specific settlement offers during the mediation. 11 (2d Resp. at 4; see also Mot. at 1.) 12 The court issues scheduling orders setting trial and related dates to provide a 13 reasonable schedule for the resolution of disputes. Under Federal Rule of Civil 14 Procedure 16(b)(4), “[a] schedule may be modified only for good cause and with the 15 judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The central inquiry under Fed. R. Civ. P. 16 16(b)(4) is whether the requesting party was diligent . . . .” DRK Photo v. McGraw-Hill 17 Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017). The district court may 18 therefore modify the schedule “if it cannot reasonably be met despite the diligence of the 19 party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 20 (9th Cir. 1992) (quoting Fed. R. Civ. P. 16 advisory committee’s note to 1983 21 amendment). The court may also consider “the existence or degree of prejudice” to the 22 opposing party, though the focus of the inquiry remains on the moving party’s diligence. ORDER - 6 1 Id. As the moving party, Mr. Ewalan bears the burden to demonstrate good cause. See, 2 e.g., Sagdai v. Travelers Home & Marine Ins. Co., No. C21-0182LK, 2022 WL 3 17403445, at * 2 (W.D. Wash. Dec. 2, 2022). 4 The court concludes that Mr. Ewalan has not met his burden. This matter has been 5 pending for nearly four years. The court has already once continued the trial date, 6 building extra time into the pretrial schedule “[i]n light of the unique complexities 7 presented by this case, including but not limited to [Mr.] Ewalan’s pro se and 8 incarcerated status.” (Sched. Order at 1.) There are no new or different circumstances 9 that now warrant an eleventh-hour trial continuance. That Mr. Ewalan claims to be “in 10 conversation with” four attorneys does not establish good cause, as Mr. Ewalan could 11 have independently secured representation months or even years ago and therefore has 12 not demonstrated diligence. (Mot. at 1.) Mr. Ewalan first received a trial date on August 13 22, 2023 (8/22/23 Min. Order (Dkt. # 147) at 1), and he has been aware of the current 14 trial date since approximately October 16, 2023 (Sched. Order at 1)—allowing more than 15 ample time to prepare for trial. The court has diligently managed the docket in this case 16 to ensure this matter proceeds to trial as planned. Defendants would be prejudiced by the 17 requested continuance as they are well into their trial preparations, having served witness 18 subpoenas and made travel and lodging arrangements. (Fowler Decl. (Dkt. # 216) ¶ 5.) 19 As it stands, a trial continuance is not warranted. The court therefore DENIES 20 Mr. Ewalan’s motion to continue the trial date. In addition, the court GRANTS in part 21 Defendants’ motion to strike. The court agrees with Defendants that Mr. Ewalan 22 improperly filed a pleading containing inadmissible settlement negotiation details. (See ORDER - 7 1 Mot. at 4.) Rather than striking the pleading, however, the court will arrange for the 2 document to be sealed. IV. 3 CONCLUSION 4 In sum, the court DENIES Mr. Ewalan’s motion concerning remote trial 5 participation (Dkt. # 198), GRANTS in part Defendant’s motion to strike (Dkt. # 215), 6 and DIRECTS the Clerk to seal Mr. Ewalan’s motion concerning remote trial 7 participation (Dkt. # 198). The court further DENIES Mr. Ewalan’s motion to continue 8 the trial date (Dkt. # 202). 9 Dated this 26th day of March, 2024. 10 A JAMES L. ROBART United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?