United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S RESPONSE/OBJECTION TO R
& R ORDERING TRIAL BY VIDEO TELECONFERECE IN A JURY
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Plaintiff's
Response/Objection to R & R Ordering Trail [sic] by Video
Teleconference in and Jury Trail [sic], which the Court
should construe as a motion for reconsideration. Dkt. 197.
The Court has considered the motion and the remaining record.
April 28, 2016, Plaintiff, a prisoner acting pro se, filed
this case pursuant to 42 U.S.C. § 1983. Dkts. 1 and 4.
This case is set to begin trial solely on Plaintiff's
claim that, while he was a pre-trial detainee in the Pierce
County, Washington jail, Defendants Lieutenant Charla
James-Hutchinson and Sergeant Jackie Caruso violated his due
process rights when they revoked his good time credits. Dkt.
30, 2018, Plaintiff's writ of habeas corpus ad
testificandum, filed to have him brought from state prison in
Walla Walla to Tacoma to present his case in person, was
denied. Dkt. 194. The undersigned found that Plaintiff could
appear via live videoconferencing. Dkt. 194.
14, 2018, Plaintiff filed a Motion to Set Settlement
Conference to Accept Defendant's Offer, which is noted
for consideration on June 29, 2018. Dkt. 195.
21, 2018, Plaintiff filed a Motion to Continue Scheduling
Order Dates for Trial (Dkt. 196) and Motion to Request Bench
Trial (Dkt. 198). Both motions are noted for consideration on
July 6, 2018. Dkts. 196 and 198.
21, 2018, Plaintiff also filed the instant motion for
reconsideration, in which he asserts that the order that he
appear via video conference should be vacated. Dkt. 197. He
asserts that he has participated in trials in person (one in
which he defended himself) and no one was injured.
Id. He asserts that concerns over his propensity
toward violence are exaggerated. Id. Further, he
maintains that his constitutional right to a trial would be
impacted, in part because the jury would see him in a prison
jumpsuit and in a prison cell. Id. Plaintiff moves
for appointment of counsel if the court does not allow him to
appear physically. Id.
opinion will first consider Plaintiff's motion for
reconsideration and then his motion for appointment of
on Motion for Reconsideration. Under Local Rule W.D.
Washington 7 (h)(2), a motion for reconsideration shall be
filed “within fourteen days after the order to which it
relates.” Moreover, “[m]otions for
reconsideration are disfavored.” Local Rule 7 (h)(1).
The rule further provides that “[t]he court will
ordinarily deny such motions in the absence of a showing of
manifest error in the prior ruling or a showing of new facts
or legal authority which could not have been brought to its
attention earlier.” Id.
on Plaintiff's Motion for Reconsideration.
Plaintiff's motion for reconsideration (Dkt. 197) should
be denied as untimely - it was filed 21 days after the order
was filed - 7 days too late. Further, Plaintiff fails to make
a “showing of manifest error in the prior ruling or a
showing of new facts or legal authority which could not have
been brought to its attention earlier.” Local Rule 7
(h)(1). While Plaintiff takes exception to some of the
findings in the order denying his writ of habeas corpus ad
testificandum, he offers no proof to the contrary. Although
Plaintiff raises concerns about the jury seeing him in his
prison clothing, the events in question occurred while he was
in custody, so that the Plaintiff is still in custody is not
overly prejudicial. The May 30, 2018 order denying
Plaintiff's writ of habeas corpus ad testificandum (Dkt.
194) should be affirmed.
for Appointment of Counsel. Normally, if a plaintiff
has been granted in forma pauperis status, the court
may appoint counsel to represent him or her in exceptional
circumstances. Franklin v. Murphy, 745 F.2d 1221,
1236 (9th Cir. 1984). To find exceptional circumstances, the
court must evaluate the likelihood of success on the merits
and the ability of the petitioner to articulate the claims
pro se in light of the complexity of the legal
issues involved. Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983).
motion for appointment of counsel (Dkt. 197) should be
denied. There is no showing of an exceptional circumstance
here. Plaintiff has an even likelihood of success on the
merits. Weygandt, at 954. He is able to articulate
the claims pro se in light of the complexity of the
legal issues involved. Id. His motion (Dkt. 197)
should be denied.