Ewalan v. Schreiber

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 JOSEPH LOCHUCH EWALAN, CASE NO. C20-5678JLR 11 Plaintiff, ORDER v. 12 WASHINGTON STATE 13 DEPARTMENT OF CORRECTIONS, et al., 14 15 Defendants.

16 Before the court is pro se Plaintiff Joseph Ewalan’s motion for reconsideration of 17 the court’s October 4, 2023 order denying Mr. Ewalan’s motion for an order directing the 18 Washington State Department of Corrections (“DOC”) to transport Mr. Ewalan to Seattle 19 for trial. (Mot. (Dkt. # 160); see also 10/4/23 Order (Dkt. # 159); Transp. Mot. (Dkt. 20 // 21 // 22 // 1 # 148).) 1 Having reviewed the motion, the relevant portions of the record, and the 2 governing law, the court DENIES Mr. Ewalan’s motion for reconsideration.

3 “Motions for reconsideration are disfavored,” and the court “will ordinarily deny 4 such motions in the absence of a showing of manifest error in the prior ruling or a 5 showing of new facts or legal authority which could not have been brought to its attention 6 earlier with reasonable diligence.” Local Rules W.D. Wash. LCR 7(h)(1). 7 “Reconsideration is an extraordinary remedy,” and the moving party bears a “heavy 8 burden.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). The

9 court concludes that Mr. Ewalan has not met his burden to demonstrate that the court’s 10 prior order should be reconsidered. 11 Mr. Ewalan seeks reconsideration based on the factors set forth in Wiggins v. 12 Alameda County, 717 F.2d 466 (9th Cir. 1983). (See generally Mot.) Under Wiggins, a 13 district court considering whether to issue a writ of habeas corpus ad testificandum must

14 consider: (1) “whether the prisoner’s presence will substantially further the resolution of 15 the case”; (2) “the security risks presented by the prisoner’s presence”; (3) “the expense 16 of the prisoner’s transportation and safekeeping”; and (4) “whether the suit can be stayed 17 until the prisoner is released without prejudice to the cause asserted.” Wiggins, 717 F.2d 18 at 468 n.1. In particular, Mr. Ewalan argues his physical presence will substantially

19 further resolution of the case based on the value of “live testimony” and appearing “face 20 [to] face” with witnesses and the jury. (Mot. at 4.) Mr. Ewalan argues that the modest 21 1 The court construed Mr. Ewalan’s motion for an order of transport as one seeking a 22 writ of habeas corpus ad testificandum. (10/4/23 Order at 3.) 1 expenses associated with his transport and housing do not outweigh his low security risk. 2 (Id. at 3-4.) Mr. Ewalan also argues the court could stay this case until his release from

3 prison without prejudice to the defendants, which would allow more time for Defendant 4 Russell Dickerson to appear and actively participate in the litigation. (Id. at 7-9; see also 5 id. at 7, 11-12 (suggesting that Mr. Ewalan’s release from prison is imminent based on 6 Mr. Ewalan’s pending collateral attack on his conviction in state court).) Finally, Mr. 7 Ewalan raises concerns that he will suffer prejudice if required to conduct trial remotely 8 while incarcerated and acting pro se. (See Mot. at 6 (arguing that appearing by

9 videoconference from prison will create a negative impression on the jury).) 10 However, Mr. Ewalan identifies neither manifest error in the court’s prior order, 11 nor facts or legal authority which could not have been brought to the court’s attention 12 earlier with reasonable diligence. Local Rules W.D. Wash. LCR 7(h)(1). The court 13 carefully weighed the Wiggins factors and concluded that Mr. Ewalan’s request for a writ

14 of habeas corpus ad testificandum should be denied. (10/4/23 Order at 3-5.) Mr. 15 Ewalan’s disagreement with the court’s analysis is not a basis for reconsideration. 16 Moreover, Mr. Ewalan’s concerns related to prejudice do not warrant reconsideration 17 because they may be addressed through jury instructions and motions in limine. See 18 Thompson v. Hicks, No. C08-1065-JCC, 2012 WL 12874936, at *1 (W.D. Wash. Sept. 9,

19 2012) (declining to order new trial based on alleged prejudice where incarcerated pro se 20 plaintiff conducted trial by videoconference in § 1983 action). 21 // 22 // 1 For these reasons, the court DENIES Mr. Ewalan’s motion for reconsideration 2 (Dkt. # 160.)

3 Dated this 11th day of October. A 4 JAMES L. ROBART 5 United States District Judge 6 7 8 9 10 11 12 13

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