1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ELVIS VENABLE, Case No. 1:17-cv-01519-BAM (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION REQUESTING PERMISSION TO RESUBMIT 12 v. PRETRIAL STATEMENT (ECF No. 68) 13 PATEL, ORDER DISREGARDING PLAINTIFF’S 14 Defendant. RESUBMITTED PRETRIAL STATEMENT (ECF No. 71) 15 ORDER CONSTRUING PLAINTIFF’S 16 WITNESS LIST AS MOTION FOR ATTENDANCE OF INCARCERATED 17 WITNESSES (ECF No. 69) 18 ORDER DENYING PLAINTIFF’S MOTION 19 FOR ATTENDANCE OF INCARCERATED WITNESSES 20 (ECF No. 69) 21 ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 22 (ECF No. 70) 23 ORDER DIRECTING CLERK OF COURT TO SERVE COURTESY COPY ON PLAINTIFF 24 AT NEW ADDRESS 25 26 I. Introduction 27 Plaintiff Elvis Venable (“Plaintiff”) is a state prisoner proceeding pro se and in forma 28 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 1 Plaintiff’s claim against Defendant Patel for nominal, compensatory, and punitive damages 2 resulting from Defendant Patel’s alleged violation of Plaintiff’s Eighth Amendment rights. All 3 parties have consented to Magistrate Judge jurisdiction. (ECF No. 44.) This case is set for a jury 4 trial commencing February 14, 2022. 5 A telephonic trial confirmation hearing (“TTCH”) was held on December 13, 2021. 6 Plaintiff, appearing pro se, and Robert M. Perkins III, Lucia Q. Li, and Sharon Garske,1 counsel 7 for Defendant, attended the hearing. As discussed on the record and explained more fully below, 8 Plaintiff’s motions requesting permission to resubmit his pretrial statement, for attendance of 9 incarcerated witnesses, and for appointment of counsel, (ECF Nos. 68, 69, 70), are denied. 10 During the TTCH, Plaintiff also notified the Court that he has recently been transferred to 11 California Correctional Institution. Accordingly, a courtesy copy of the instant order will be 12 served on Plaintiff at his current institution. 13 II. Procedural Background 14 Pursuant to the May 18, 2021, Second Scheduling Order, Plaintiff’s pretrial statement, 15 motions for attendance of incarcerated witnesses at trial, and names and locations of 16 unincarcerated witnesses who refuse to testify voluntarily, were all due on or before October 6, 17 2021. (ECF No. 50.) 18 On September 30, 2021, Plaintiff filed a notice of change of address, (ECF No. 55), and 19 on October 18, 2021 Plaintiff filed a motion requesting an extension of time because he had 20 recently been transferred and had not received his property or been able to attend the law library, 21 (ECF No. 56). The Court construed the motion as requesting an extension of time to file 22 Plaintiff’s pretrial statement, motion for incarcerated witnesses, and names and locations of 23 unincarcerated witnesses, and extended those deadlines to November 9, 2021. (ECF No. 57.) 24 On November 8, 2021, Plaintiff filed a brief pretrial statement and a motion indicating 25 that he would not be calling any witnesses. (ECF Nos. 62, 63.) Defendant Patel filed a pretrial 26 statement on November 18, 2021. (ECF No. 65.) 27 1 Attorney Sharon Garske has not filed a notice of appearance on behalf of Defendant Patel. Ms. Garske should file a 28 notice of appearance as soon as feasible in this action. 1 Currently before the Court are Plaintiff’s motion requesting permission to resubmit his 2 pretrial statement and the names of two incarcerated witnesses, both filed December 2, 2021, 3 (ECF Nos. 68, 69), and Plaintiff’s motion to appoint counsel and proposed resubmitted pretrial 4 statement, both filed December 6, 2021, (ECF Nos. 70, 71). Defendant filed an opposition to 5 Plaintiff’s resubmitted pretrial statement on December 7, 2021. (ECF No. 72.) The motions are 6 deemed submitted. Local Rule 230(l). 7 II. Plaintiff’s Motion Requesting Permission to Resubmit Pretrial Statement 8 In his motion, Plaintiff states that he seeks permission to resubmit his pretrial statement to 9 correct the deficiencies in his previous pretrial statement. (ECF No. 68.) Plaintiff states that he is 10 a novice of the law and was not sure what a pretrial statement consisted of. (Id.) In the 11 resubmitted pretrial statement, Plaintiff sets forth his version of the undisputed and disputed facts, 12 but does not otherwise list any additional witnesses or exhibits he will present at trial. (ECF No. 13 71.) 14 Plaintiff’s request is denied. The Court’s May 18, 2021 Second Scheduling Order 15 included a copy of Local Rule 281, which sets forth in detail the form and contents of pretrial 16 statements. (ECF No. 50-1.) The Second Scheduling Order and Local Rule 281 were served on 17 Plaintiff at his address of record, and Plaintiff does not allege that he did not receive these 18 documents. 19 Further, Plaintiff was already granted an extension of time to file his pretrial statement. 20 (ECF No. 57.) In his motion requesting an extension of time, Plaintiff stated only that he did not 21 have his property and that he was unable to attend the law library. (See ECF No. 56.) At no time 22 did Plaintiff inform the Court that he did not understand how to file a pretrial statement or that he 23 did not understand what should be included therein. 24 Finally, Plaintiff’s motion states that he wishes to resubmit his pretrial statement “to 25 correction the deficiencies” in his previous pretrial statement. (ECF No. 68.) However, 26 Plaintiff’s proposed pretrial statement, which sets forth additional undisputed and disputed facts, 27 does not otherwise add additional information regarding what evidence or witnesses Plaintiff may 28 wish to call at trial, and therefore would not correct the deficiencies of the original pretrial 1 statement. In consideration of all of the above, the Court does not find that Plaintiff has presented 2 sufficient justification to allow him to resubmit his pretrial statement. Plaintiff’s December 6, 3 2021 pretrial statement, (ECF No. 71), is therefore disregarded. 4 III. Motion for Attendance of Incarcerated Witnesses 5 Plaintiff has submitted the names of two incarcerated witnesses, Randolph Rachell 6 (CDCR #F-88709) and Martin Bibbs (CDCR #H-03951). (ECF No. 69.) Plaintiff has not 7 included any other information about these witnesses or their anticipated testimony. The Court 8 construes the filing as a motion for attendance of incarcerated witnesses. 9 In determining whether to grant Plaintiff’s motions for the attendance of incarcerated 10 witnesses, the Court considers the following factors: (1) whether the inmate’s presence will 11 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 12 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed 13 until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 14 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 15 (9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience 16 and expense of transporting inmate witness outweighed any benefit he could provide where the 17 importance of the witness’s testimony could not be determined), abrogated on other grounds by 18 Sandin v. Conner, 515 U.S. 472 (1995). 19 As explained in the Court’s May 18, 2021 Second Scheduling Order, in order to obtain the 20 attendance of incarcerated witnesses, a party is required to serve a motion for a court order 21 requiring that the witness be brought to court at the time of trial.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ELVIS VENABLE, Case No. 1:17-cv-01519-BAM (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION REQUESTING PERMISSION TO RESUBMIT 12 v. PRETRIAL STATEMENT (ECF No. 68) 13 PATEL, ORDER DISREGARDING PLAINTIFF’S 14 Defendant. RESUBMITTED PRETRIAL STATEMENT (ECF No. 71) 15 ORDER CONSTRUING PLAINTIFF’S 16 WITNESS LIST AS MOTION FOR ATTENDANCE OF INCARCERATED 17 WITNESSES (ECF No. 69) 18 ORDER DENYING PLAINTIFF’S MOTION 19 FOR ATTENDANCE OF INCARCERATED WITNESSES 20 (ECF No. 69) 21 ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 22 (ECF No. 70) 23 ORDER DIRECTING CLERK OF COURT TO SERVE COURTESY COPY ON PLAINTIFF 24 AT NEW ADDRESS 25 26 I. Introduction 27 Plaintiff Elvis Venable (“Plaintiff”) is a state prisoner proceeding pro se and in forma 28 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 1 Plaintiff’s claim against Defendant Patel for nominal, compensatory, and punitive damages 2 resulting from Defendant Patel’s alleged violation of Plaintiff’s Eighth Amendment rights. All 3 parties have consented to Magistrate Judge jurisdiction. (ECF No. 44.) This case is set for a jury 4 trial commencing February 14, 2022. 5 A telephonic trial confirmation hearing (“TTCH”) was held on December 13, 2021. 6 Plaintiff, appearing pro se, and Robert M. Perkins III, Lucia Q. Li, and Sharon Garske,1 counsel 7 for Defendant, attended the hearing. As discussed on the record and explained more fully below, 8 Plaintiff’s motions requesting permission to resubmit his pretrial statement, for attendance of 9 incarcerated witnesses, and for appointment of counsel, (ECF Nos. 68, 69, 70), are denied. 10 During the TTCH, Plaintiff also notified the Court that he has recently been transferred to 11 California Correctional Institution. Accordingly, a courtesy copy of the instant order will be 12 served on Plaintiff at his current institution. 13 II. Procedural Background 14 Pursuant to the May 18, 2021, Second Scheduling Order, Plaintiff’s pretrial statement, 15 motions for attendance of incarcerated witnesses at trial, and names and locations of 16 unincarcerated witnesses who refuse to testify voluntarily, were all due on or before October 6, 17 2021. (ECF No. 50.) 18 On September 30, 2021, Plaintiff filed a notice of change of address, (ECF No. 55), and 19 on October 18, 2021 Plaintiff filed a motion requesting an extension of time because he had 20 recently been transferred and had not received his property or been able to attend the law library, 21 (ECF No. 56). The Court construed the motion as requesting an extension of time to file 22 Plaintiff’s pretrial statement, motion for incarcerated witnesses, and names and locations of 23 unincarcerated witnesses, and extended those deadlines to November 9, 2021. (ECF No. 57.) 24 On November 8, 2021, Plaintiff filed a brief pretrial statement and a motion indicating 25 that he would not be calling any witnesses. (ECF Nos. 62, 63.) Defendant Patel filed a pretrial 26 statement on November 18, 2021. (ECF No. 65.) 27 1 Attorney Sharon Garske has not filed a notice of appearance on behalf of Defendant Patel. Ms. Garske should file a 28 notice of appearance as soon as feasible in this action. 1 Currently before the Court are Plaintiff’s motion requesting permission to resubmit his 2 pretrial statement and the names of two incarcerated witnesses, both filed December 2, 2021, 3 (ECF Nos. 68, 69), and Plaintiff’s motion to appoint counsel and proposed resubmitted pretrial 4 statement, both filed December 6, 2021, (ECF Nos. 70, 71). Defendant filed an opposition to 5 Plaintiff’s resubmitted pretrial statement on December 7, 2021. (ECF No. 72.) The motions are 6 deemed submitted. Local Rule 230(l). 7 II. Plaintiff’s Motion Requesting Permission to Resubmit Pretrial Statement 8 In his motion, Plaintiff states that he seeks permission to resubmit his pretrial statement to 9 correct the deficiencies in his previous pretrial statement. (ECF No. 68.) Plaintiff states that he is 10 a novice of the law and was not sure what a pretrial statement consisted of. (Id.) In the 11 resubmitted pretrial statement, Plaintiff sets forth his version of the undisputed and disputed facts, 12 but does not otherwise list any additional witnesses or exhibits he will present at trial. (ECF No. 13 71.) 14 Plaintiff’s request is denied. The Court’s May 18, 2021 Second Scheduling Order 15 included a copy of Local Rule 281, which sets forth in detail the form and contents of pretrial 16 statements. (ECF No. 50-1.) The Second Scheduling Order and Local Rule 281 were served on 17 Plaintiff at his address of record, and Plaintiff does not allege that he did not receive these 18 documents. 19 Further, Plaintiff was already granted an extension of time to file his pretrial statement. 20 (ECF No. 57.) In his motion requesting an extension of time, Plaintiff stated only that he did not 21 have his property and that he was unable to attend the law library. (See ECF No. 56.) At no time 22 did Plaintiff inform the Court that he did not understand how to file a pretrial statement or that he 23 did not understand what should be included therein. 24 Finally, Plaintiff’s motion states that he wishes to resubmit his pretrial statement “to 25 correction the deficiencies” in his previous pretrial statement. (ECF No. 68.) However, 26 Plaintiff’s proposed pretrial statement, which sets forth additional undisputed and disputed facts, 27 does not otherwise add additional information regarding what evidence or witnesses Plaintiff may 28 wish to call at trial, and therefore would not correct the deficiencies of the original pretrial 1 statement. In consideration of all of the above, the Court does not find that Plaintiff has presented 2 sufficient justification to allow him to resubmit his pretrial statement. Plaintiff’s December 6, 3 2021 pretrial statement, (ECF No. 71), is therefore disregarded. 4 III. Motion for Attendance of Incarcerated Witnesses 5 Plaintiff has submitted the names of two incarcerated witnesses, Randolph Rachell 6 (CDCR #F-88709) and Martin Bibbs (CDCR #H-03951). (ECF No. 69.) Plaintiff has not 7 included any other information about these witnesses or their anticipated testimony. The Court 8 construes the filing as a motion for attendance of incarcerated witnesses. 9 In determining whether to grant Plaintiff’s motions for the attendance of incarcerated 10 witnesses, the Court considers the following factors: (1) whether the inmate’s presence will 11 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 12 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed 13 until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 14 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 15 (9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience 16 and expense of transporting inmate witness outweighed any benefit he could provide where the 17 importance of the witness’s testimony could not be determined), abrogated on other grounds by 18 Sandin v. Conner, 515 U.S. 472 (1995). 19 As explained in the Court’s May 18, 2021 Second Scheduling Order, in order to obtain the 20 attendance of incarcerated witnesses, a party is required to serve a motion for a court order 21 requiring that the witness be brought to court at the time of trial. “The motion must: (1) state the 22 name, address, and prison identification number of each such witness; and (2) be accompanied by 23 declarations showing that each witness is willing to testify and that each witness has actual 24 knowledge of relevant facts.” (ECF No. 50, p. 2.) If the witness is not willing to testify 25 voluntarily, the party must indicate in the motion that the incarcerated witness is not willing to 26 testify voluntarily. (Id. at 3.) Further, as discussed above, any such motion was due on or before 27 November 9, 2021, the extended deadline set by the Court’s prior order. (ECF No. 57.) 28 /// 1 In his November 8, 2021 filing, Plaintiff originally stated that he would not be calling any 2 witnesses. (ECF No. 62.) Plaintiff now seeks to call two incarcerated witnesses, but has failed to 3 provide any explanation for the change or the late filing of his request. 4 Even assuming Plaintiff had timely filed his request for the attendance of these 5 incarcerated witnesses, Plaintiff has failed to include the required information regarding the 6 witnesses’ addresses, their willingness to testify, or any showing that they have actual knowledge 7 of relevant facts. Furthermore, as discussed during the TTCH, Plaintiff does not appear to have 8 knowledge as to what information or events his proposed witnesses would testify to during trial. 9 Based on the minimal information provided, the Court cannot find that the presence or 10 testimony of these inmates will substantially further the resolution of the case such that the Court 11 can justify the security risks or expenses of their transport to court for this trial. Plaintiff’s motion 12 for attendance of these incarcerated witnesses is therefore denied. See Walker, 14 F.3d at 1422 13 (district court did not abuse its discretion when it concluded the inconvenience and expense of 14 transporting inmate witness outweighed any benefit he could provide where the importance of the 15 witness’s testimony could not be determined). 16 IV. Motion to Appoint Counsel 17 As explained during the TTCH, Plaintiff does not have a constitutional right to appointed 18 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 19 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 20 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 21 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 22 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 23 1525. 24 Without a reasonable method of securing and compensating counsel, the Court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 1 The Court has considered Plaintiff’s request, but does not find the required exceptional 2 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 3 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 4 This Court is faced with similar cases filed by prisoners who are proceeding pro se almost daily. 5 These litigants also must represent themselves at trial without the assistance of counsel. 6 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 7 Plaintiff is likely to succeed on the merits. Although Plaintiff’s case is proceeding to trial, this 8 does not alone indicate a likelihood of success on the merits. Finally, based on a review of the 9 record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. 10 V. Order 11 Based on the foregoing, IT IS HEREBY ORDERED as follows: 12 1. Plaintiff’s motion requesting permission to resubmit pretrial statement, (ECF No. 68), is 13 DENIED; 14 2. Plaintiff’s resubmitted pretrial statement, (ECF No. 71), is DISREGARDED; 15 3. Plaintiff’s witness list, (ECF No. 69), is CONSTRUED as a motion for attendance of 16 incarcerated witnesses; 17 4. Plaintiff’s motion for attendance of incarcerated witnesses, (ECF No. 69), is DENIED; 18 5. Plaintiff’s motion to appoint counsel, (ECF No. 70), is DENIED; and 19 6. The Clerk of the Court is DIRECTED to serve a copy of the instant order on Plaintiff at 20 his current address of record and to serve a courtesy copy to: Elvis Venable, P32015, 21 P.O. Box 1031, Tehachapi, California 93581. 22 IT IS SO ORDERED. 23
24 Dated: December 13, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25
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