United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL,
MOTION FOR COPY OF TRANSCRIPTS, AND MOTION TO APPOINT
COUNSEL
TROY
L. NUNLEY UNITED STATES DISTRICT JUDGE
This
matter is before the Court pursuant to Plaintiff David
Florence's (“Plaintiff”) Motion to Appoint
Counsel, Motion for a New Trial, and Motion for Copy of
Transcripts. (ECF No. 163; ECF No. 164; ECF No. 166.)
Defendant E. Colter (“Defendant”) opposes
Plaintiff's Motion for a New Trial. (ECF No. 167.) Having
carefully considered the briefings filed by both parties, the
Court hereby DENIES Plaintiff's Motion to Appoint
Counsel, Motion for a New Trial, and Motion for Copy of
Transcripts.
I.
Motion for a New Trial
Plaintiff
is a state prisoner proceeding pro se. (ECF 163 at 2.) In his
pretrial statement, Plaintiff alleged Defendant violated
Plaintiff's First Amendment rights by placing
Plaintiff's life in danger by “calling him a
snitch” in front of other inmates in response to
Plaintiff filing appeals against prison staff. (ECF No. 102
at 3.) At trial, the jury found that Defendant did not
violate Plaintiff's First Amendment right to be free from
retaliation. (ECF No. 155 at 1.) The Court entered the
jury's verdict on January 23, 2019. (ECF No. 157 at 1.)
The case was accordingly closed.
On
February 25, 2019, Plaintiff filed a document titled
“Plaintiff Notice of Motion and Motion For a New Trial
under FRCP Rule 59.” (ECF No. 164 at 1.) The Court
construes this as a motion for a new trial pursuant to
Federal Rule of Civil Procedure 59(a). Fed.R.Civ.P. 59(a). In
Plaintiff's motion, he argues that: (1) the Court abused
its discretion by denying Plaintiff's motion for
appointment of counsel; (2) the Court abused its discretion
by allowing the jury to see Plaintiff in leg-irons and
handcuffs; (3) the Court abused its discretion when it failed
to instruct the jury about allegedly missing evidence; (4)
the Court abused its discretion when it refused to allow
Plaintiff to question Defendant about the contents of certain
documents; (5) the Court abused its discretion by allowing
Defendant to produce new evidence not listed on the February
2018 exhibit list; and (6) the Court abused its discretion by
refusing to allow Plaintiff an extension for discovery. (ECF
No. 164 at 2-4.)
Rule
59(a)(1) states, “the court may, on motion, grant a new
trial on all or some of the issues-and to any party-as
follows: after a jury trial for any reason for which a new
trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1). The Court
entered the jury verdict on January 23, 2019. (ECF No. 157 at
1.) Plaintiff filed the motion for a new trial on February
25, 2019. (ECF No. 164 at 1.) Rule 59(b) states, “a
motion for a new trial must be filed no later than 28 days
after the entry of judgment.” Fed.R.Civ.P. 59(b).
Plaintiff's motion was filed 33 days after the entry of
judgment. (See ECF 164 at 1.) Therefore,
Plaintiff's motion for a new trial is untimely. This
alone is a basis for denying Plaintiff's motion. However,
Plaintiff's motion also fails on substantive grounds.
i.
Whether the Court abused its discretion by denying
Plaintiff's motion for new counsel
Plaintiff
argues the Court abused its discretion by denying his motion
for appointment of counsel. (ECF No. 164 at 2.) A motion for
appointment of counsel is left to the discretion of the trial
court and is granted only in exceptional circumstances.
See Franklin v. Murphy, 745 F.2d 1221, 1236 (9th
Cir. 1984); Kilgore v. Virga, 11-cv-1822 KJN P, 2012
WL 651760, at *1 (E.D. Cal. Feb. 28, 2012). “A finding
of the exceptional circumstances of the plaintiff seeking
assistance requires at least an evaluation of the likelihood
of the plaintiff's success on the merits and an
evaluation of the plaintiff's ability to articulate his
claims ‘in light of the complexity of the legal issues
involved.'” Agyeman v. Corrections Corp. of
America, 390 F.3d 1101, 1103 (9th Cir. 2004)
(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331
(9th Cir. 1986)). Plaintiff failed to demonstrate exceptional
circumstances in his pleadings which required the appointment
of counsel. Plaintiff is not entitled to a new trial on this
issue.
ii.
Whether the Court abused its discretion by allowing Plaintiff
to be shackled
Plaintiff
argues the Court abused its discretion by allowing the jury
to see him in leg-irons and handcuffs. (ECF No. 164 at 2-4.)
Defendant argues that the jury pool briefly had the
opportunity to see Plaintiff shackled prior to the beginning
of the trial, but those restraints were quickly removed. (ECF
No. 167 at 2.) Defendant further argues that after that
point, Plaintiff's restraints were hidden from the
jury's view and only lower body restraints, not visible
to the jury, were used. (ECF No. 167 at 2.) Plaintiff in his
reply to Defendant's opposition argues that the jury
could see the leg shackles because Plaintiff was sitting in
the witness box directly in front of the jurors. (ECF 168 at
3.) Plaintiff also argues that he could not get up to show
his exhibits because he was in leg shackles. (ECF 168 at 4.)
As a result, defense counsel had to take his exhibits up to
the screen, and “defense counsel was not trying to show
the exhibits in Plaintiff's favor.” (ECF 168 at 4.)
It is
clear that visible shackling during a criminal
defendant's trial is forbidden as prejudicial. Deck
v. Missouri, 544 U.S. 622, 626 (2005). This, however, is
a civil case. While the Ninth Circuit “has recognized
the inherent prejudice associated with unjustified shackling
in civil proceedings, ” Claiborne v. Blauser,
No. 16-16077, 2019 WL 2676900, at *6 (9th Cir. June 28,
2019), a number of the concerns that are present in a
criminal case are absent, Clem v. Lomeli, No.
2:05-CV-02129-JKS, 2007 WL 2688842, at *4 (E.D. Cal. Sept.
13, 2007). Here, there is no presumption of innocence.
Id. Moreover, the jury knows that in a prisoner
civil rights case such as this, the plaintiff is an inmate
and sees that his witnesses are also inmates. Id.
However, in civil as in criminal cases, the right to a fair
trial is fundamental. Id. As such, “[t]he
plaintiff and his witnesses should not be presented to the
jury in a worse light than the circumstances require.”
Id. In Claibrone v. Blauser, the Ninth
Circuit reversed and remanded a district court's denial
of a new trial where an inmate Plaintiff was shackled during
a three-day trial on Eighth Amendment excessive force and
deliberate indifference claims. Claiborne v.
Blauser, No. 16-16077, 2019 WL 2676900 (9th Cir. June
28, 2019). In that case, the Plaintiff was visibly shackled
without any showing of sufficient need for restraints.
Id.
Here,
different than in Claiborne, and despite
Plaintiff's contention to the contrary, Plaintiff was
never visibly shackled in the presence of the sworn jury or
even a sworn prospective jury.[1] (See ECF No. 148.)
Plaintiff was momentarily handcuffed prior to the prospective
jurors being sworn in, (ECF No. 148), and the Court
immediately held a shackling hearing outside of the presence
of prospective jurors. (ECF No. 148.) Plaintiff has not shown
how these events created any unfair prejudice warranting a
new trial. Moreover, the Ninth Circuit has clearly
articulated that a “defendant could ask for a voir dire
of the jury if a juror saw the defendant in handcuffs”
prior to the start of trial. Castillo v. Stainer,
983 F.2d 145, 148 (9th Cir. 1992), opinion amended on
denial of reh'g, 997 F.2d 669 (9th Cir. 1993). Here,
though highly unlikely, if a potential juror did in
fact see Plaintiff in handcuffs, Plaintiff had the
opportunity to ask the jury pool questions. (See ECF
No. 148.)
Because
Plaintiff only had lower body restraints and these restraints
were not clearly visible to the jury, the degree of prejudice
is small. See Castillo, 983 F.2d at 149 (finding
that criminal defendant wearing a waist chain under his shirt
did not prejudice the jury's verdict because the chain
was not clearly visible to the jury); see also Williams
v. Woodford, 384 F.3d 567, 592-23 (9th Cir. 2004)
(finding that criminal defendant's leg chain that could
not be seen by the jury was harmless error). Plaintiff fails
to make an affirmative showing that actual prejudice resulted
from the unlikely possibility of the prospective jury's
brief and inadvertent observation of him in restraints.
Accordingly, Plaintiff's motion for a new trial on this
basis fails.
Iii.
Whether the Court abused its discretion by using allegedly
...