Florence v. Colter

          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 ...