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Lopez v. Cook

March 30, 2010

ANDREW R. LOPEZ, PLAINTIFF,
v.
S. COOK, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The incidents giving rise to this action took place while plaintiff was incarcerated at High Desert State Prison (HDSP). Following multiple summary judgment motion, plaintiff is now proceeding to trial on his remaining claims of retaliation and procedural due process violations in connection with his gang validation and retention in administrative segregation as a result thereof.

On August 19, 2009, the undersigned issued an order resetting the jury trial in this action for May 4, 2010 before the assigned district judge. Thereafter, plaintiff filed a number of motions and requests that are now pending before the court. Below, the court addresses those various motions and requests.

I. Plaintiff's Requests For Counsel

Plaintiff has filed a number of motions and requests with the court seeking the assistance of counsel. In this regard, on May 1, 2009, plaintiff filed a document with the court styled, "Notice of past and current intentional obstruction to court access by prison officials, and fraud. And previous warning to prison officials by the United States District Court. [sic] Request to hold officials in contempt and order they cease conduct. And request for counsel. [sic]" (Doc. No. 193.) Next, on May 21, 2009, requested that the court use its "congressionally authorized discretion" and ask counsel from its pro bono list to assist plaintiff. (Doc. No. 196) Thereafter, on September 2, 2009, plaintiff filed a document with this court styled, "Notice Of Additional Mental Incapacity, And, Request For This Court To Ask Counsel To Assist." (Doc. No. 200.) On January 19, 2010, plaintiff then filed a document requesting, in part, that counsel be sought to represent plaintiff and that the scheduled jury trial date be vacated until plaintiff had been able to obtain expert witnesses to testify on his behalf. (Doc. No. 203.) Finally, on March 8, 2010, plaintiff filed a document with the court styled, "Plaintiff's Notice Of Impediments And Suggestion By Expert Witness," in which he contends that "Corrections Expert Daniel B. Vasquez" has suggested to plaintiff that he obtain counsel. (Doc. No. 206 at 1.)

Law and motion is closed in this action and the matter is set for trial. While appointment of counsel was not previously deemed appropriate, the court is mindful of the difficulty that a pro se litigant such as plaintiff encounters at trial in a civil rights action such as this. Accordingly, plaintiff's requests that the court seek pro bono counsel on his behalf will be granted at this time. The undersigned has referred this matter to the Eastern District's Pro Bono Panel. The court's referral does not guarantee that counsel will be obtained to represent plaintiff at trial. It merely means that the court will attempt to secure counsel for plaintiff from the Pro Bono Panel if possible.

Unfortunately, in light of the number of cases pending in this district which are similarly situated, the process of merely determining whether pro bono counsel can be located will may take approximately two months. In light of the court's referral of this matter to the Pro Bono Panel, the court will therefore vacate the May 4, 2010 trial date at this time. A new trial date will be reset, as appropriate, after a determination has been made on the court's referral.

II. Plaintiff's Requests Concerning Trial Witnesses

Pursuant to the court's further scheduling order filed on March 3, 2009, on April 22, 2009 plaintiff filed his pretrial statement and his request for witnesses to be brought to court for his trial. (Doc. No. 191.) Therein, plaintiff requests the attendance of twenty current or former inmate witnesses, as well as several unincarcerated witnesses, at his trial. It appears that several of the incarcerated witnesses identified by plaintiff would be capable of testifying only regarding claims advanced by plaintiff that have previously been dismissed by the court. The court will deny plaintiff's request for the attendance of witnesses at trial, without prejudice, at this time.

In a subsequent order the court will set a new deadline for the filing of such request. However, plaintiff is cautioned that the court will not order the attendance of multiple prisoners witnesses at trial for the purpose of securing cumulative testimony. Plaintiff is advised that he should carefully select his incarcerated witnesses and to make sure that he has provided to the court in any future request all of the information concerning such witnesses required by the court's March 3, 2009 further scheduling order.

Plaintiff is also advised that the court will not issue any orders compelling the attendance of unincarcerated witnesses. Plaintiff must follow the procedures described in the March 3, 2009 further scheduling order to obtain the attendance of unincarcerated witnesses at trial.

In addition, on September 2, 2009, plaintiff filed a document styled, "Notice Of Anticipated Prejudice And Request For Orders To Ensure That Felon Witnesses Are Produced, At State Expense, For Trial." (Doc. No. 201.) It appears that plaintiff filed this document in order to ensure that his incarcerated witnesses are made available to him at the time of trial. To do so, plaintiff seeks a court order preventing his currently incarcerated witnesses from being released on parole until after they have testified at his trial. Plaintiff's request in this regard is frivolous and seeks an order which is beyond the court's authority. Accordingly, plaintiff's request in this regard will be denied.

On January 7, 2010, plaintiff filed a request with the court seeking the appointment of expert witnesses on his behalf. (Doc. No. 202.) Specifically, plaintiff requests that Daniel Vasquez, Craig Haney, and Paul Good be appointed as his expert witnesses. In support of this request plaintiff contends that these expert witnesses testified in the case of Lira v. Cate, Case No. C-00-0905 SI (N.D. Cal.). According to plaintiff, the court in Lira found that plaintiff's due process rights were violated because he was not provided notice and an opportunity to be heard before he was validated as a gang member and placed in segregation. Plaintiff contends that Daniel Vasquez testified on behalf of the plaintiff in the Lira case about the evidence used in the validation process for inmate Lira and the reliability of such evidence. Plaintiff also contends that inmate Lira was placed on contraband surveillance watch and that "expert witnesses Craig Haney and Paul Good testified to the psychological effects resulting from those conditions, and to the benefits that fair proceedings and acknowledging the erroneous validation would produce." (Doc. No. 202 at 3.)

Plaintiff's request for the appointment of expert witnesses will be denied at this time because plaintiff has failed to establish that the experts whose appointment he seeks could provide relevant testimony in this action. The court has previously determined that the only remaining issues which survived defendants' motion for summary judgment, are whether plaintiff was provided an opportunity to express his views at the following stages of the gang validation process: his initial placement in administrative segregation, his retention in administrative segregation and his ultimate validation as a gang member. (See Findings and Recommendations filed Sept. 29, 2008 (Doc. No. 178), at 35-46; Order adopting Findings and Recommendations filed Jan. 16, 2009 (Doc. No. 184). Therefore, the reliability of evidence used in plaintiff's gang validation, the psychological effects of being placed on ...


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