(PC) Zaiza v. Tamplen ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE R. ZAIZA, Case No. 2:15-cv-00447-KJM-JDP (PC) 12 Plaintiff, ORDER (1) GRANTING PLAINTIFF’S MOTION TO CALL JULIO FALCON AS A 13 v. WITNESS AT THE FEBRUARY 1, 2021 EVIDENTIARY HEARING AND (2) 14 D. TAMPLEN, et al., DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 15 Defendants. ECF Nos. 64, 65 16 17 An evidentiary hearing is set for February 1, 2021, on the issue of whether plaintiff 18 exhausted his administrative remedies for his excessive force claims against defendants Giessner 19 and Tamplen. ECF No. 64. Plaintiff has filed a motion requesting that Julio Falcon, an inmate at 20 California State Prison Corcoran (“CSP Corcoran”), be permitted to testify at the evidentiary 21 hearing. ECF No. 64. Plaintiff has also filed a motion for appointment of counsel. ECF No. 65. 22 For the following reasons, plaintiff’s motion to call Mr. Falcon as a witness will be granted and 23 his motion for appointment of counsel will be denied. 24 According to plaintiff, Mr. Falcon was his cellmate at California State Prison, Corcoran. 25 ECF No. 64 at 1. Mr. Falcon not only assisted plaintiff in preparing the documents required by 26 California Department of Corrections and Rehabilitation’s (“CDCR”) administrative procedures, 27 he also purportedly witnessed prison officials obstructing plaintiff’s ability to exhaust his 28 1 administrative remedies. Defendant opposes plaintiff’s motion, arguing that Mr. Falcon could not 2 have personal knowledge of any Hight Desert State Prison (“HDSP”) officer’s alleged obstruction 3 since he was housed at CSP Corcoran from August 2010 to June 2015. ECF No. 69 at 2. 4 The events giving rise to plaintiff’s claims occurred at HDSP in 2012. ECF No. 14 at 4. 5 However, the record reflects that plaintiff was housed at CSP Corcoran in 2013, which was when 6 he was attempting to exhaust his administrative remedies. See ECF No. 36-6 at 10; ECF No. 50 7 at 9-11. If Mr. Falcon did assist in preparing documents required for plaintiff’s administrative 8 appeal, as plaintiff claims, he may be able to testify as to plaintiff’s efforts to comply with 9 CDCR’s administrative procedures. Such testimony could corroborate plaintiff’s early assertion 10 that he properly resubmitted his third-level appeal, but prison officials failed to deliver it to the 11 appropriate office. See ECF No. 50 at 11. 12 Defendant also argues that plaintiff has failed to adequately explain what information Mr. 13 Falcon will provide. ECF No. 69 at 2. Thus, defendant contends that the probative value of Mr. 14 Falcon’s testimony is substantially outweighed by the delay and waste of resources that will result 15 if he is permitted to testify. Id. The lack of detail in plaintiff’s request does not justify excluding 16 Mr. Falcon’s testimony, especially considering that plaintiff is proceeding without the benefit of 17 counsel. Defendant also fails to appreciate that plaintiff has only request permission to call one 18 none-party witness.1 Even if Mr. Falcon is unable to provide relevant testimony, the resulting 19 burden would be minimal. Accordingly, Mr. Falcon will be permitted to testify. 20 Plaintiff also has moved for appointment of counsel. Plaintiff does not have a 21 constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 22 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent plaintiff. See 23 Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). The 24 court may request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court 25 may request an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 26 1525. However, without a means to compensate counsel, the court will seek volunteer counsel 27 28 1 Presumably, plaintiff will also provide testimony. 1 only in exceptional circumstances. In determining whether such circumstances exist, “the district 2 | court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] 3 || to articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 4 | F.3d at 1525 (internal quotation marks and citations omitted). 5 Having considered these factors, the court cannot find that exceptional circumstances 6 | warrant granting plaintiff's request. The issues to be addressed at the evidentiary hearing are not 7 | complex, and plaintiff has demonstrated an adequate ability to articulate his position. The motion 8 || will therefore be denied. 9 Accordingly, it is hereby ORDERED that: 10 1. Plaintiffs motion requesting that Julio Falcon testify at the February 1, 2021 11 | evidentiary hearing, ECF No. 64, is granted. 12 2. Plaintiffs motion for appointment of counsel, ECF No. 65, is denied. 13 4 IT IS SO ORDERED. 15 ( 1 Ow — Dated: _ January 22, 2021 Q_—— 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28