The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The jury trial previously set for June 21, 2010 is moved to September 27, 2010. The court will also address several motions filed by plaintiff.
On April 7, 2010, plaintiff filed a motion to appoint the U.C. Davis Law Clinic and on April 14, 2010, plaintiff filed a motion for appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances. Plaintiff's request for the appointment of the U.C. Davis Law Clinic and appointment counsel will therefore be denied.
On April 14, 2010, plaintiff requested expanded discovery. Discovery has long since closed and plaintiff has not shown good cause to reopen discovery.
On April 14, 2010, plaintiff requested to appear at the pretrial conference by telephone. The pretrial conference is conducted on the file only, without appearance by either party.
Plaintiff's Pretrial Statement
Plaintiff filed his pretrial statement on April 7, 2010 and indicated he intended to call approximately 25 non-incarcerated witnesses and 4 incarcerated witnesses. Several of the non-incarcerated witnesses include defense counsel, other lawyers, court reporters, psychologists and doctors.
It is not entirely clear the relevance of all of the proposed witnesses. Plaintiff is informed that at the trial of this case, he must be prepared to introduce evidence to prove each of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is the plaintiff's responsibility to produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or witness testimony. If the plaintiff wants to call witnesses to testify, he must follow certain procedures to ensure that the witnesses will be at the trial and available to testify. Plaintiff should also refer to Local Rule 281 that addresses what is required in a pretrial statement.
I. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily
An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot come to court unless this court orders the warden or other custodian to permit the witness to be transported to court. This court will not issue such an order unless it is satisfied that:
1. The prospective witness is willing to attend; and
2. The prospective witness has actual knowledge of relevant facts. With the pretrial statement, a party intending to introduce the testimony of incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for a court order ...