Pinson v. Federal Bureau of Prisons

• Court: District Court, D. Arizona
• Decided: April 21, 2023
• Docket: 4:19-cv-00401
• Status: Unknown

Opinion

1 WO 2

7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9

10 Jeremy Pinson, No. CV-19-00401-TUC-RM 11 Plaintiff, ORDER 12 v. 13 United States of America, 14 Defendant. 15

16 Pending before the Court are several Motions filed by Plaintiff: (1) First Motion for 17 Writ of Habeas Corpus Ad Testificandum (Doc. 69); (2) Second Motion for Writ of Habeas 18 Corpus (Doc. 76); (3) Motion to Appoint Neutral Expert Witness (Doc. 77); (4) Motion for 19 Order to Clarify (Doc. 80); (5) Motion for Order to Resolve Dispute (Doc. 82); and (6) 20 Renewed Motion to Appoint Counsel (Doc. 83). 21 I. Background 22 Plaintiff filed a First Amended Complaint (“FAC”) alleging four counts of 23 constitutional violations pursuant to Bivens v. Six Unknown Named Agents of Federal 24 Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), 28 25 U.S.C. § 1346, based on events that occurred while she was confined in the United States 26 Penitentiary (“USP”)-Tucson. (Doc. 21.)1 On screening, the Court determined that Plaintiff 27 1 Plaintiff is currently incarcerated at USP-Tucson and is serving an aggregate 252-month 28 term of imprisonment for various crimes including Mailing Threatening Communications, Threat to a Juror, and Threats Against the President. (Doc. 47 at 1.) 1 stated an FTCA claim in Count One against the United States and dismissed the remaining 2 claims and Defendants. (Doc. 20.) The Court then denied Defendant’s Motion to Dismiss 3 with respect to Plaintiff’s FTCA claim based on her injuries allegedly suffered due to staff 4 negligence in giving her razors while she was confined in the Special Housing Unit 5 (“SHU”) in June and September 2020. (Doc. 45 at 6-7.) 6 The Court subsequently granted Defendant’s Motion for Summary Judgment to the 7 extent Plaintiff’s FTCA claim was based on alleged injuries on June 21, 2020, but denied 8 summary judgment with respect to the allegation that Officer Vasquez gave Plaintiff a razor 9 on or before September 14, 2020. (Doc. 54.) The Court found that questions of fact exist 10 as to whether Officer Vasquez breached his duty of care to Plaintiff by giving her an 11 envelope containing a razor, and whether this breach was the but-for and proximate cause 12 of Plaintiff’s self-inflicted injuries. (Id. at 10-13; Doc. 73.) Thus, the issues remaining for 13 trial are whether Officer Vasquez gave Plaintiff an envelope that he knew contained a razor 14 on or before September 14, 2020, whether Office Vasquez breached his duty of care to 15 Plaintiff by doing so, whether there is a causal connection between Officer Vasquez’s 16 conduct and Plaintiff’s self-injury, and whether Plaintiff’s damages, if any, were the result 17 of Officer Vasquez’s conduct. (Docs. 54, 73.) The parties have submitted their Joint 18 Proposed Pretrial Order and have stipulated to a bench trial. (Doc. 70.) 19 II. First and Second Motions for Writ of Habeas Corpus Ad Testificandum 20 In her First and Second Motions for Writ of Habeas Corpus, Plaintiff asks the Court 21 to issue writs of habeas corpus ad testificandum to secure her presence and the presence of 22 her witnesses at trial. (Docs. 69, 76.)2 Specifically, Plaintiff asks that Dr. Samantha Licata, 23 Dr. James Hayden, Nurse J. Avilez, and inmates August Goodbird, Coty Waters, Jimmy 24 Malone, Rene Ellis, Shaundelle Dial, and Ronnie Bostick be required to testify in person. 25 (Doc. 69 at 1.) Plaintiff argues that the testimony of these witnesses is relevant and critical 26 to establishing that Officer Vasquez gave Plaintiff a razor and knew Plaintiff would harm 27 herself with it. (Doc. 69 at 1, 5-6; Doc. 76 at 1-3.) Plaintiff recognizes that a prisoner has

28 2 Plaintiff also requests the appointment of counsel in her First Motion for Writ of Habeas Corpus. (Doc. 69.) That request is addressed infra in Section VI. 1 no constitutional right to appear personally at a trial in a civil suit, but she argues that the 2 Court should issue a writ to secure her physical presence in order to ensure a fair trial. 3 (Doc. 69 at 1-3; Doc. 76 at 1, 6-8.) Plaintiff avers that she has been transported from prison 4 multiple times without incident and that the same is true for many if not all of her witnesses. 5 (Doc. 76 at 3-4.)3 6 In response to the Motions, Defendant argues that Plaintiff has not established why 7 a writ should issue as to her and her inmate witnesses when videoconferencing would raise 8 fewer security concerns and be less expensive. (Doc. 75 at 6-8; Doc. 78.)4 Defendant argues 9 that Plaintiff’s physical presence at trial is not necessary because videoconferencing would 10 allow the trier of fact to view Plaintiff and assess her credibility. (Doc. 75 at 7; Doc. 78 at 11 9.) Defendant avers that Plaintiff is a maximum custody inmate whose transportation to the 12 courthouse for trial would cost $9,151 and would require the presence of four USP-Tucson 13 correctional officers and one Lieutenant. (Doc. 75 at 6; Doc. 78 at 7-8.) Defendant 14 contends that staying trial until Plaintiff’s release is impracticable because Plaintiff is not 15 scheduled to be released until October 2026. (Doc. 75 at 7; Doc. 78 at 9.)5 Defendant 16 further argues that Plaintiff has not shown that the testimony of her inmate witnesses would 17 substantially further resolution of this case, that none of the witnesses are located at USP- 18 Tucson, and that some of the witnesses are designated to high security United States 19 penitentiaries. (Doc. 75 at 7; Doc. 78 at 10.) 20 A. Legal Standard 21 “[I]mprisonment suspends [a] plaintiff's usual right to be personally present at 22 judicial proceedings brought by himself or on his behalf.” Hernandez v. Whiting, 881 F.2d 23 768, 770 (9th Cir. 1989). However, a district court has “power to issue a writ of habeas

24 3 In addition to requesting writs of habeas corpus ad testificandum, Plaintiff asks the Court to direct the United States Marshal to advance witness fees, as she is unable to tender the 25 fees. (Doc. 69 at 4-5.) The Court finds this request premature and does not address it at this time. Plaintiff may re-raise this issue when she files motions to subpoena trial witnesses 26 pursuant to General Order 18-19. 4 Defendant also notes that a writ of habeas corpus ad testificandum does not apply to 27 witnesses who are Bureau of Prisons employees rather than inmates. (Doc. 75 at 8.) 5 Defendant’s brief contains a typo stating that Plaintiff’s release date is in October 2006. 28 The supporting exhibits indicate that Plaintiff’s projected release date is in October 2026. (Doc. 75-1 at 9.) 1 corpus ad testificandum to secure the testimony of a [] prisoner witness.” Wiggins v. 2 Alameda Cnty., 717 F.2d 466, 468 n.1 (9th Cir. 1983) (per curiam) (citing Ballard v. 3 Spradley, 557 F.2d 476, 480 (5th Cir. 1977)); see also 28 U.S.C. § 2241(c)(5). In 4 determining whether to issue a writ of habeas corpus ad testificandum to secure a prisoner’s 5 physical presence at trial, district courts consider (1) “whether the prisoner’s presence will 6 substantially further the resolution of the case”; (2) “the security risks presented by the 7 prisoner’s presence”; (3) “the expense of the prisoner’s transportation and safekeeping”; 8 and (4) “whether the suit can be stayed until the prisoner is released without prejudice to 9 the cause asserted.” Id. (quoting Ballard, 557 F.2d at 480). The focus of the inquiry is “the 10 need for the prisoner’s testimony vis-à-vis the difficulties attendant to securing it.” Ballard, 11 557 F.2d at 481. 12 When a case turns largely on credibility assessments, a district court cannot exclude 13 a plaintiff from trial without weighing the “the practical concerns of safety and expense” 14 against the necessity of making credibility assessments. Latiolas v. Whitley, 93 F.3d 205, 15 208 (5th Cir. 1996) (finding district court erred in conducting trial entirely on deposition 16 testimony without considering the need to make credibility assessments). 17 Videoconferencing may impede a fact-finder’s ability to observe demeanor and assess 18 credibility. Montes v. Rafalowski, No. C 09-0976 RMW, 2012 WL 2395273, at *2 (N.D. 19 Cal. June 25, 2012). Nevertheless, if the security concerns and expense associated with 20 transporting an inmate plaintiff to the courthouse “weigh heavily against issuing a writ of 21 habeas corpus ad testificandum,” videoconferencing offers a viable alternative that may 22 facilitate the plaintiff’s meaningful participation at trial. Id.; see also Perotti v. Quinones, 23 790 F.3d 712, 715 (7th Cir. 2015) (videoconferencing facilitates an incarcerated plaintiff’s 24 ability to “testify, present evidence, confront witnesses and address the jury”); Velasquez 25 v. City of Santa Clara, No. 5:11-CV-03588-PSG, 2013 WL 6320849, at *5 (N.D. Cal. Dec. 26 4, 2013) (finding inmate witness’s “participation through video conference would alleviate 27 significant expense and security risks without unfairly prejudicing [him] by denying the 28 jury the adequate opportunity to judge his credibility”). 1 B. Discussion 2 Having considered the Ballard factors and the parties’ respective positions, the 3 Court will grant Plaintiff’s Writ of Habeas Corpus Ad Testificandum as to her and will 4 deny it without prejudice as to her inmate witnesses. The Court will also deny Plaintiff’s 5 Motions to the extent they seek a writ of habeas corpus ad testificandum to secure the 6 presence of non-inmate witnesses, as such a writ is inapplicable to non-inmate witnesses. 7 Although Plaintiff has no right to be physically present at trial, the Court finds that 8 Plaintiff’s physical presence will substantially further resolution of the case by allowing 9 the Court to assess Plaintiff’s credibility and by facilitating Plaintiff’s presentation of 10 evidence, testimony, and arguments. The Court has considered the potential security risks 11 and the approximate $9,000 cost of transporting Plaintiff to the courthouse for trial and 12 does not find that these factors outweigh the need for Plaintiff’s in-person presence and 13 testimony. Staying this action is impracticable as Plaintiff is not due to be released until 14 2026, and a three-year stay would prejudice her claim. Accordingly, the Ballard factors 15 weigh in favor of granting a writ of habeas corpus ad testificandum to secure Plaintiff’s 16 physical presence at trial. 17 However, the Court is not persuaded at this time that the Ballard factors justify 18 requiring the physical presence of Plaintiff’s inmate witnesses at trial. First, Plaintiff has 19 not shown that the testimony of the inmate witnesses is so crucial to resolution of this case 20 that their physical presence is necessary to allow the Court to make appropriate evidentiary 21 determinations. Videoconference appearances will allow the Court to view the witnesses, 22 hear their voices, and evaluate their testimony. There is no technological barrier to any 23 witnesses appearing via videoconference, as both the Court and the federal prisons have 24 the appropriate technology and are well-versed in its use. 25 The remainder of the Ballard factors also appear to weigh against issuing a writ of 26 habeas corpus ad testificandum as to Plaintiff’s inmate witnesses. Although the security 27 level of each inmate is unknown, it appears that at least some of the inmate witnesses are 28 in maximum security custody. Furthermore, Defendant avers that none of the inmate 1 witnesses are located in Tucson, and thus their transportation would involve additional 2 security risks and expense. 3 The Court will deny Plaintiff’s Motions without prejudice as to the inmate 4 witnesses. After the pretrial conference and the resolution of motions in limine, Plaintiff 5 may renew her request for writs of habeas corpus ad testificandum as to specific inmate 6 witnesses, if new information arises regarding the necessity of the inmate witnesses’ 7 physical presence or the security risks and expense associated with transporting the 8 witnesses. 9 III. Motion to Appoint Neutral Expert Witness 10 Plaintiff’s Motion to Appoint Neutral Expert Witness seeks an Order appointing a 11 neutral expert witness at trial pursuant to Federal Rule of Evidence 706. Plaintiff seeks the 12 appointment of an expert witness to testify regarding “the impact of the SHU and solitary 13 confinement on her state of mind on September 14, 2020.” (Doc. 77.) Plaintiff avers that 14 she has spent approximately one-third of her life in segregated housing or solitary 15 confinement, and that these experiences have profoundly impacted her mental health. (Id.) 16 Plaintiff avers that other courts have introduced expert testimony to show the psychological 17 effects on prisoners of confinement and mistreatment by prison staff. (Id.) Plaintiff argues 18 that an expert should be appointed to opine on how her confinement in segregation 19 impacted her mental state when she engaged in self-harm on September 14, 2020, and how 20 it continues to impact her. (Id.) 21 Defendant responded in opposition to the Motion. (Doc. 79.) Defendant notes that 22 neither party has disclosed an expert witness, neither party listed any expert witnesses in 23 the Joint Proposed Pretrial Order, and both parties listed Plaintiff’s treating psychologist, 24 Dr. Samantha Licata, as a fact witness. (Id. at 3, 6.) Defendant argues that this case does 25 not involve complex, scientific, or technical issues, and does not present circumstances 26 necessitating the appointment of an expert. (Id. at 6.) Defendant avers that Dr. Licata 27 evaluated Plaintiff on September 14 and 15, 2020, the psychology records from those dates 28 1 are listed as trial exhibits, and both Dr. Licata and Plaintiff can testify regarding Plaintiff’s 2 state of mind on those dates. (Id.) 3 A. Legal Standard 4 Federal Rule of Evidence 702(a) authorizes “[a] witness who is qualified as an 5 expert by knowledge, skill, experience, training, or education [to] testify in the form of an 6 opinion or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge 7 will help the trier of fact to understand the evidence or to determine a fact in issue[.]” Rule 8 706(a) allows a court to appoint an expert witness. 9 Rule 706(a) “only allows a court to appoint a neutral expert.” Gorton v. Todd, 793 10 F.Supp.2d 1171, 1178 (E.D. Cal. 2011). It “does not contemplate the appointment of, and 11 compensation for, an expert to aid one of the parties.” Hollis v. Sloan, No. 2:08-CV-2674, 12 2010 WL 4069336, at *1 (E.D. Cal. Oct. 18, 2010). “[T]he principal purpose of a court- 13 appointed expert is to assist the trier of fact, not to serve as an advocate.” Id. 14 A court may consider the “complexity of the evidence” and “the court’s need for an 15 impartial viewpoint” in deciding whether to appoint a neutral expert witness. Womack v. 16 GEO Grp., Inc., No. CV-12-1524-PHX-SRB, 2013 WL 2422691, at *2 (D. Ariz. June 3, 17 2013). Appointment of an expert pursuant to Rule 706 is rare and is usually done only 18 when compelling circumstances are present. Id. at *3. Appointment of a neutral expert 19 witness is not necessary in cases that do “not involve complex scientific evidence or 20 complex issues.” Skylstad v. Reynolds, 248 F. App'x 808, 810 (9th Cir. 2007); see also 21 Berg v. Prison Health Servs., 376 F. App'x 723, 724 (9th Cir. 2010) (holding that district 22 court did not abuse its discretion in denying motion for appointment of an independent 23 expert because the “action was not a medical malpractice claim and did not involve 24 technical evidence or complex issues”). 25 B. Discussion 26 Appointment of a neutral expert witness under Rule 706 is neither necessary nor 27 justified in this matter. The issue on which Plaintiff requests a neutral expert—the effect 28 of solitary confinement and segregation on her mental health—may be relevant to 1 Plaintiff’s choice to harm herself with a razor, but it is not directly relevant to any actions 2 or omissions of Officer Vasquez and their effect on Plaintiff. Furthermore, both Plaintiff 3 and Dr. Licata can, and presumably will, testify regarding Plaintiff’s state of mind when 4 she harmed herself with a razor on September 14, 2020. Thus, Plaintiff has not articulated 5 a need for an expert witness to illuminate or explain any issue that is outside the scope of 6 the expected testimony. There are no complex scientific or technical issues in this case on 7 which the Court would benefit from hearing testimony from a neutral expert. Accordingly, 8 the Motion will be denied. 9 IV. Motion for Order to Clarify 10 Plaintiff moves for an Order directing Defendant to clarify certain statements in its 11 Response to the Second Motion for Writ of Habeas Corpus Ad Testificandum. (Doc. 80; 12 see also Doc. 78.) Plaintiff asks for clarification on Defendant’s statement that “Plaintiff 13 poses a danger to staff” and “the community.” (Doc. 80.) Plaintiff asks the Court to order 14 Defendant to identify the names of the staff members to whom Plaintiff poses a danger, the 15 reason why she poses a danger, and the details of the “danger” that are “real, specific, and 16 based in present time and place.” (Id.) Plaintiff also asks for clarification on Defendant’s 17 statement regarding her “purported non-monetary settlement offer” and why Defendant 18 characterized the offer as “purported” or “improper.” (Id.) 19 Defendant opposes the Motion, arguing that it does not comport with the Federal 20 Rules of Civil Procedure or Rules of Evidence and does not show that Plaintiff is entitled 21 to any relief. (Doc. 81 at 6.) Defendant avers that its statements regarding the danger 22 Plaintiff poses to staff and the community were based on Plaintiff’s maximum-custody 23 status and Bureau of Prisons policy that inmate transportation procedures “be followed 24 based on the custody level of the inmate.” (Id. at 6-7.) Defendant further states that 25 Plaintiff’s request for additional discussion or explanation of the parties’ settlement 26 negotiations would violate Federal Rule of Evidence 408, which prohibits evidence of 27 settlement offers and negotiations. (Id. at 7.) Defendant further states that Plaintiff’s 28 1 settlement offer in this case shares the same defect as Plaintiff’s rejected settlement offer 2 in Pinson v. Estrada, No. 4:18-cv-00535. (Id.) 3 The Court finds no basis on which to grant the Motion for Order to Clarify. Plaintiff 4 has not identified a specific issue requiring clarification at this time, nor has she identified 5 a reason why such clarification would be necessary. Furthermore, Defendant has 6 adequately explained its statements regarding the danger posed by Plaintiff and the 7 settlement offer. The Motion will be denied. 8 V. Motion for Order to Resolve Dispute 9 In this Motion, Plaintiff “seeks a determination by the Court” as to whether her 10 settlement offer to Defendant was “improper” and, if it was not, an order that defense 11 counsel “retract her accusations” of the offer’s impropriety. (Doc. 82.) Defendant argues 12 that Plaintiff’s Motion does not show an entitlement to any relief, violates Federal Rule of 13 Evidence 408, and mischaracterizes the parties’ settlement negotiations. (Doc. 84.) 14 The parties previously engaged in a settlement conference before Magistrate Judge 15 Leslie A. Bowman and did not reach a settlement. (Doc. 62.) There is no live issue or 16 dispute regarding the content or nature of Plaintiff’s previous settlement offer. The fact that 17 Plaintiff does not like defense counsel’s characterization of the offer as “improper” does 18 not present a dispute for this Court to resolve. Plaintiff’s Motion will be denied. 19 VI. Requests for Appointment of Counsel 20 Plaintiff’s First Motion for Writ of Habeas Corpus contains a request for the 21 appointment of counsel. (Doc. 69 at 3-4.) Plaintiff also filed a Renewed Motion to Appoint 22 Counsel. (Doc. 83.) Plaintiff argues that counsel will assist her in litigating this case if she 23 does not appear in-person at trial by, for example, ensuring that witnesses appear. (Doc. 69 24 at 3-4.) She also argues that exceptional circumstances meriting the appointment of counsel 25 are present based on her likelihood of success on the merits of the case and her ability to 26 articulate her claims pro se. (Id.; Doc. 83.) Defendant responds that Plaintiff has not 27 demonstrated a need for counsel different from that of any other pro se litigant, that she is 28 1 experienced in litigating in federal court, and that she clearly understands the legal standard 2 and defense in this simple negligence action. (Doc. 75 at 10; Doc. 85 at 4-6.) 3 There is no constitutional right to the appointment of counsel in a civil case. See 4 Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982); see also 5 Hernandez, 881 F.2d at 770 (an incarcerated civil litigant has no constitutional entitlement 6 to court-ordered counsel unless her case carries the risk of affecting her physical liberty). 7 In proceedings in forma pauperis, the court may request an attorney to represent any person 8 unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 9 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. 10 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional 11 circumstances requires an evaluation of the likelihood of success on the merits as well as 12 the ability of Plaintiff to articulate her claims pro se in light of the complexity of the legal 13 issue involved. Id. “Neither of these factors is dispositive and both must be viewed together 14 before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 15 Cir. 1986)). 16 The Court addressed Plaintiff’s request for trial counsel in a prior Order. (Doc. 66.) 17 The Court again finds that there are no exceptional circumstances warranting the 18 appointment of counsel in this case. Plaintiff has demonstrated an ability to research and 19 make legal arguments and to timely litigate issues as they arise. The Court has already 20 determined that the issues in this case are not complex. Plaintiff’s presence in the SHU 21 does not on its own justify the appointment of counsel, especially given Plaintiff’s 22 demonstrated ability to litigate her case. Because no exceptional circumstances warrant the 23 appointment of counsel, Plaintiff’s requests for the appointment of counsel will be denied. 24 Accordingly, 25 IT IS ORDERED: 26 (1) Plaintiff’s First Motion for Writ of Habeas Corpus Ad Testificandum (Doc. 27 69) and Second Motion for Writ of Habeas Corpus (Doc. 76) are granted in 28 part and denied in part. Plaintiff’s request to appear in-person for the bench 1 trial is granted. Plaintiff's request for her inmate witnesses to appear in- 2 person for the bench trial is denied without prejudice. Inmate witnesses 3 may appear via videoconference. 4 (2) Plaintiff's Motion to Appoint Neutral Expert Witness (Doc. 77) is denied. 5 (3) Plaintiff's Motion for Order to Clarify (Doc. 80) is denied. 6 (4) Plaintiff's Motion for Order to Resolve Dispute (Doc. 82) is denied. 7 (5) Plaintiff's Renewed Motion to Appoint Counsel (Doc. 83) is denied. 8 Dated this 21st day of April, 2023. 9 10 —_ 4 Pf’ □□ 12 —D J tigi □ □□ Honorable Rostsiary □□□□□□□ 13 United States District □□□□□ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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