*1 Of- Public Defender’s Kennedy, Federal K. CA, R. Snedek- Michael
fice, Angeles, Los Portland, Short, Snedeker, &
er, Smith
OR, Petitioner-Appellee. Jorstad, Califor- Office
Kristofer CA, General, Angeles, Los Attorney
nia Respondent-Appellant.
ORDER
KOZINSKI, Judge: Chief of nonre- majority aof
Upon the vote this it is ordered judges, active
cused to Cir- pursuant banc en be reheard
case panel three-judge Rule 35-3.
cuit precedent as not be cited shall
opinion Ninth Circuit. any PALMER, Plaintiff- Moses
Will
Appellant, Walker, Sergeant; R. VALDEZ; N.
M. Gibbs; Henley; B. G.R.
Lebedeff; S. Defendants-Appellees.
Salazar, 06-15458.
No. Appeals, States
United Circuit.
Ninth 11, 2008. Aug.
Argued Submitted March
Filed *2 General,
torney Chaney, David S. Chief General, Attorney Assistant Frances T. Grander, Senior Assistant Attorney Gener- al, Jorgenson, and Michael W. Supervising Deputy Attorney General of San Francis- co, CA, for the defendants-appellees. SILER, Before: JR.,* EUGENE E. M. MARGARET McKEOWN and CALLAHAN, M. CONSUELO Circuit Judges.
CALLAHAN, Judge: Circuit Palmer, William pris- California state oner, appeals from the district court’s judgment in prison favor of officials in his pro § se 42 U.S.C. 1983 action alleging violations of Eighth Amendment. Fol- lowing a bench argues (1) the district court by erred imposing an unconstitutional condition on Palmer’s (2) waiver of to trial jury, and denying appoint- for the ment of pursuant to 28 U.S.C. 1915(e)(1). § jurisdiction We have to hear appeal pursuant this § to 28 U.S.C. We affirm the district court’s decision. September 16, 2003, On Palmer filed a complaint § under U.S.C. alleging that six officials violated Eighth rights Amendment by using excessive force on separate two occasions. Proceed- Michelle (argued) Friedland and Martin se, ing pro properly requested trial D. Bern of Munger, Olson, Tolies & LLP by jury. Francisco, CA, of San plaintiff- for the As the proceeded, case Palmer made appellant. three appointment motions for of counsel Mossier, Julianne Deputy Attorney Gen- pursuant 1915(e)(1). § to 28 U.S.C. On eral (argued), Brown, Jr., Edmund G. At- August argued that coun- * Siler, Jr., Eugene cuit, The Honorable E. sitting by Senior designation. Judge United States Circuit for the Sixth Cir- January Palmer mailed lacked the On because he was warranted sel that thirteen witnesses requesting necessary discovery conduct ability to testify by telephone; permitted January On incarcerated. while court on motion was filed recently incurred he had argued *3 30, January alleged Palmer that he 2006.2 pain caused him severe injury that the privilege using had been denied the it difficult to making thus sitting while incarcerated, and had not phone while necessary to documents and review draft to secure loans from friends to been able Decem- his claim. On effectively litigate serving subpoenas. cover the costs of 2005, that counsel 5, argued Palmer ber been denied necessary because he had was witnesses, Singleton, One of Palmer’s for three legal documents access to his 18, verbally January refused the had officials’ ac- a result of months as voluntarily. The appear court order to suffering debili- he was tions and because Singleton to have extracted court offered surgery from an unsuccessful tating pain brought from cell and to court to testi- to draft and review it difficult that made Single- to have fy, but Palmer had declined court denied each The district documents. testify in compelled person. ton motion. conference, pre-trial At the held on Jan- 2006, later, 12, January the on
A month
30, 2006,
uary
again
moved for
setting
pre-trial
the
an order
court issued
thought was a
Singleton, who Palmer
6, 2006, and
February
witness,
date for
testify
conference
“very
tele-
important”
7,
In the
February
2006.
a trial date of
the
phonically. The court declined
order,
subpoena
that
the court noted
would have a
noting that
witnesses had
four non-inmate
did
forms for
witness and that the' courtroom
see the
Palmer’s criminal
to Palmer.
video
and
high-tech
been sent
not “have the
screens
asked to serve
thing.”
whom Palmer
Defendants’ counsel
investigator,
that kind of
subpoenas,
of these four
whether Palmer would want
copies
inquired
additional
was an-
court stated that
when the trial date
waive the
present
court,
Palm-
open
pre-
put any pressure
in
on
Later
did not want
nounced.
30,
not
January
indicated that he was
was moved
er and Palmer
trial conference
2006,
jury. Accordingly,
trial date was set
Janu-
inclined to waive the
and the
change
non-
the date for the
In addition to the four
court did not
ary
18, 2006,
witnesses,
begin
January
which was scheduled
inmate
on
day.
Palmer’s writs of
and issued
next
court received
in-
corpus ad
habeas
testificandum
January
of trial on
beginning
At the
Singleton.
mates Halbert
of his
recognized
most
forms,
made a
not
subpoena
were
received
witnesses
them,
them to the
Palmer asserted
and returned
to continue.
completed
motion
over the
on
had been confused
in
for them to be issued
witnesses
time
objected
The defendants
2006. Palmer received
date of the trial.
January
30, 2006,
court de-
The district
January
to a continuance.
subpoenas
issued
conference,
noting that the de-
and stated
nied Palmer’s
during pre-trial
witnesses
and all of defendants’
them served be-
fendants
he intended to have
and that Palmer’s
were
day.1
trial the next
fore
testimony for
requested telephonic
challenge
2. Palmer
appeal,
1. On
Palmer does
Ultimately
wit-
six of the
subpoe-
witnesses.
mailing
thirteen
timing
of the court's
during
the bench
nesses testified
nas.
unavailable due to his
were
failure to serve
trial
question
is a
of law reviewed
subpoenas,
opposed
as
to confusion
Flores,
de novo.”
Kulas v.
trial
over the
date.
The Seventh Amend-
guarantees
ment
trial
then
requested
his wit-
law,
Suits
common
“[i]n
where the
permitted
testify by
nesses be
value
tele-
phone.
gave
controversy
He stated: “You
me
shall exceed twenty
another
dol-
guess,
alternative
yesterday,
the event
lars.” U.S. Const. Am. VII. Like other
that some of these witnesses wouldn’t be
rights,
constitutional
to a jury
here. That
judge
would be to have a
in civil
can
suits
be waived. See
you
where
can—we can
use the
Moore,
United
States v.
*4
method.” He continued: “[this] means
(1951);
Kulas,
jury.] Is that contends that you want what to district do? court imposed an unconstitutional MR. PALMER: condi I don’t really have a tion choice, your allowing telephonic honor. testimony only Yes. before a bench trial. disagree. We THE The COURT: You do have a choice. record shows that You can the bench trial go was a forward with the jury trial right strategic you want, now if choice you Palmer arising can out of a waive it. don’t care. dilemma up you. It’s to of his making. own Leading up trial, to the MR. PALMER: Palmer had I’ll waive rebuffed it. the. court’s offer to key have his witness ex The district court then held a three-day tracted from his cell after the wit bench trial at which fifteen witnesses testi- ness refused to voluntarily appear. More fied. Palmer objection made no to the over, trial, on the eve of Palmer realized bench trial either during or after the trial. that he had failed to ensure presence At trial, the conclusion of the the district of a number of his judge witnesses. He entered then findings of fact and conclu- renewed his sions of to be pres law and allowed to ruled that Palmer take ent nothing his complaint. Federal Palmer filed Rule of a timely appeal notice of to Civil provides this court. Procedure 43 that a court may, discretion, in its allow the
II
transmission of
“[f]or
appeal,
On
Palmer challenges
cause in compelling
circumstances and
loss of
right
jury
his
trial.
“The
with appropriate safeguards.”3 The dis-
43(a)
3. Fed.R.Civ.P.
provides:
At
the witnesses’
must be
he had
thought that
that he
motion.
denied
trict
his constitutional
denied
improperly
within
been
that
agrees
jury
deny
discretion
court’s
its
abuse
did not
find that
we
his or her
may waive
An individual
P.
Civ.
R
doing so. See Fed.
discretion
have held
jury trial and we
a civil
address-
*5
his witnesses
present
if he could
be-
period
during
attention
court’s
he be
request that
not
did
phone.
trial,
and the
notice
trial
the bench
tween
testimony to
present
to
allowed
jury
for a
his demand
had reiterated
and
determined
court
The district
for counsel
in his second
to waive
agree
defendants would
that the
court held
the district
after
filed
was
questioned
trial and
jury
ato
right
their
Here, by
Id.
jury right.
his
had waived
he
his
he understood
make sure
to
to
sought
contrast,
Palmer who
it was
re-
Palmer’s
granted
then
It
request.5
his
response
in
to
jury right
his
waive
At no
ensued.
a bench trial
and
quest
his
of
the attendance
procure
to
failure
of
grant
court’s
following
district
time
Moreover,
never suggested
he
witnesses.
to
request
his
reso-
his proposed
court
the district
to
Palmer advise
trial did
in a bench
showings
statute,
persuasive
of
The most
unless a federal
open court
taken in
are
rules,
compelling circumstances
Evidence,
cause and
these
Rules of
the Federal
unable
a witness is
likely
when
to arise
adopted
rules
or other
reasons,
as
unexpected
such
for
in
attend trial
good cause
For
provide otherwise.
illness,
to tes-
able
but remains
appro-
accident or
and with
compelling circumstances
place.
tify
different
may
tes-
from a
permit
safeguards,
priate
contemporaneous
open court
timony in
reasonably foresee
could
party who
location.
A
from different
transmission
justify transmis-
offered
circumstances
the 1996
Notes to
Advisory Committee
4. The
difficulty
special
testimony will have
sion of
following advice:
contain the
Amendments
compelling
showing good cause and
in
testimo-
circumstances.
of
of the
Contemporaneous transmission
nature
permitted
is
location
ny
a different
from
38(d) pro-
Civil Procedure
of
5. Federal Rule
compelling
in
showing good cause
only on
jury trial
proper
demand
that a
present-
vides
importance of
The
circumstances.
parties con-
only if the
"may
withdrawn
forgot-
be
court cannot
ing
live
com-
were not
defendants here
and the
sent.”
ceremony
very
of trial
ten. The
right
waiver of his
Palmer's
pelled
agree to
pow-
may
exert
presence of
factfinder
telephon-
jury
and
to a
opportunity
truthtelling. The
erful force
waived their
they
If
had
ic
face-to-
aof witness
judge the demeanor
trial,
would
presumably
right to a
tradi-
great value in our
accorded
face. is
jury as best
to a
present his case
have had to
tion.
as he could.
problem
lution
his
of
likely
constituted
im-
merits,
to succeed on the
pain
proper conditioning of his constitutional'
his surgery
from
ability
limited his
pre
record,
ato
trial.6 On this
we
pare for
and
officials had de
conclude that
knowingly
volun-
and
him
nied
access to
legal documents,
his
tarily
waived his
trial and
thereby limiting
ability
to prepare for
acceptance
court’s
of
trial. The district court was sensitive to
Palmer’s waiver did not violate his consti-
predicament.
questioned
It
tutional
Palmer and defense counsel before trial to
ensure that Palmer had sufficient access to
Ill
legal documents,
and it limited the
challenges
Palmer also
the dis
of
length
days
the trial
provided
three
trict court’s refusal
appoint
counsel to
periods.
break
At the conclusion assist
A
him.
district court’s refusal to trial, the district court noted that Palmer
appoint
pursuant
to 28 U.S.C. had
“quite
done
a good job” putting on his
1915(e)(1)
§
is reviewed for an
abuse
case, and that he
well-organized,
made
Burt,
discretion.
Campbell
See
points,
presented
clear
the evidence
F.3d
Generally, a
effectively. We conclude that Palmer has
person
has no
to counsel in civil
not made the requisite‘showing
excep
actions. See
Spellman,
Storseth v.
F.2d
tional circumstances for the appointment
However, a
of counsel and that the
did
may
under “exceptional circum
not abuse its
discretion
denying his
stances” appoint counsel for indigent civil
requests for
appointment
of counsel.
litigants
pursuant
28 U.S.C.
Wilborn,
(“If
See
considerations is dispositive and instead part and dissenting part: must together. be viewed Wilborn v. Es The Seventh right jury Amendment to a calderon, Cir. trial in civil cases is a bedrock principle of 1986). our justice civil system. Here, the district
Palmer asserts he court presented should have Moses Will Palmer with a been appointed counsel because he was classic Hobson’s choice: If Palmer wished 6. Palmer’s comment district court —"I colloquy short at the commencement of a civil really don’t trial, have a choice”—did not invoke plaintiff when trying adjust is right jury constitutional to a witnesses, In- many the absence of of his does not deed, responded the court that Palmer did plaintiff indicate that the invoking is his con- choice; have a go he could forward with a right jury stitutional put and does not jury trial or waive it. simply respond- Palmer court or the defendants on notice that a con- ed he jury would a waive trial. Such a right stitutional been has invoked. jury present a trial and wanted to waive tes- through evidence telephone. Defendants demanded his witnesses via the district timony, Palmer re- in the waiver. acquiesced his constitutional he waive a choice, his case to trial; really a opted he “I don’t have sponded, if him forbid court would jury, the district The district court re- Honor. Yes.” Your through tele- his witnesses examining marked, from a You can “You do have choice. Because the phonic if with the now go forward an unconsti- Palmer with presented want, I can waive it. don’t you you condition, I respectfully dissent. tutional course, were up you.” It’s Of care. majority’s determination in the concur trial, proceed Palmer to with abuse its discre- court did not the district key witnesses. Con- would be without his motion for the denying tion in agreed to waive his sequently, Palmer of counsel. appointment trial, proceeded with trial, judge up and took the bench Background I. testimony. The dis- of option has left unsaid majority disposition ultimately determined that trict court brought a important details. some Eighth failed establish of- against pro se suit defendants — in favor of Amendment violation and ruled Prison —al- Valley State ficials at Salinas defendants. uncon- maliciously and that he was leging during separate two stitutionally beaten Analysis II. His case de- in December 2002.
incidents
observed,
has
As the
eyewit-
testimony of
largely on the
pended
jury trial in civil cases at
“the
of
beatings.
allegedly viewed
nesses who
fundamental
law a basic and
common
is
day of
for the first
Palmer arrived
When
jurispru
federal
system
of our
feature
informed
by the Seventh
protected
which is
dence
present.
were not
that his witnesses
York,
City
New
Amendment.” Jacob
the witnesses
determined that
The court
752, 752-53,
properly served.
had not been
(1942).
constitu
Like other
L.Ed. 1166
*7
that he could not “even
the court
informed
may
rights,
tional
the witnesses
case” without
present [his]
County
Ange
Los
be waived. Solis
of the trial.
requested a continuance
les,
that all
objected, arguing
Defense
However,
right so fundamental
“[a]
their wit-
present,
were
six defendants
jealous
...
be
citizen
should
sacred to the
was
and the case
subpoenaed,
were
nesses
Jacob, 315
by the courts.”
ly guarded
court declined
The district
“ready
go.”
And,
752-53,
“courts
973 do we “Nor proceedings: disciplinary of might One or telephone video. via pearing ... suggestion agree [the] fact- with having the ideal world in an posit be- are undermined per- credibility findings person in view the finder hearing at the credibility. witness] testified [the of cause evaluation a better mits S.E.C., 104 Pro- v. of telephone.” Rules Civil Alderman by Federal Rule 43 (9th approach. adopts this n. 4 essentially 288 F.3d cedure not universal- is But, assumption even evidentiary rules discovery and The Marcus, Complet- L. See Richard ly held. of another form opportunity provide on Conquest? Equity’s ing Reflections testimony electronic out-of-court —the Rules Federal Trial Under Future of pre-recorded of presentation Procedure, Pitt. L.Rev. 50 U. Civil of Rule of Federal depositions. at taken (1989). 757-62 30(b) for the re- allows Procedure Civil trans- contemporaneously of both “audio, Use by audio- cording depositions of testimony has pre-recorded and mitted And visual, means.” stenographic Court, by sanctioned been simply deposition —whether Rules of Civil courts, Federal circuit or vid- telephone via or taken recorded Rules of Evi- Procedure, and the Federal high- trial presented often eo—is Procedure Rule of Federal Civil dence. party opponent, a light an admission 43(a) very circumstance contemplates 801(d)(2), or where see Fed.R.Evid. in com- cause “For arose here: unavailable, see Fed.R.Evid. is witness appropriate and with circumstances pelling distinc- make no provisions 804. These may permit testimo- safeguards, the those in- trials and tion bench between contemporaneous ny open in while point is that jury. The volving a location.” a from different transmission system testimony is our preferred, live Amendments 1996 Notes to The ac- and specific use up to make is set pre- of the benefits 43 underscore Rule testimony via electronic of commodation make no testimony, dis- but senting live means. judge a involving cases between tinction consid- logistical insurmountable Absent a those with and compelling reason —none or some erations transmitted tele Contemporaneously ger- see no here—-I is of which testimony is utilized phonic audiovisual a distinguish between mane reason For example, scenarios. many different determining trial in bench trial case, Supreme Court criminal telephonic allow whether one-way closed circuit of the use approved a bench limiting Because victim testimony by a child television for a legitimate reasons was unrelated Craig, 497 Maryland v. abuse. sexual the dis- testimony, total ban L.Ed.2d S.Ct. U.S. Palmer’s Seventh violated trict also ac (1990). has Ninth Circuit by bur- right to Amendment propriety knowledged the an unconstitutional with this dening In Zolotuk civil arena. testimony in the condition. Gonzales, F.3d hin *9 majority’s focus to the response In immigration Cir.2005), we criticized an lack of considers what it permit judge’s refusal obtaining witnesses diligence expert. We have testimony of petitioner’s delay for this court’s sanction use of tele approved explicitly also con- on a grounded not have been should by the Securities phonic And, fact choice. stitutional during the course Exchange Commission object Palmer did not on constitutional
grounds option to the waiver simply
signals it, put obvious—as Palmer point, he had no choice. Participation
in a bench hardly trial can constitute
“knowing consent” if it was driven
unconstitutional condition.
Typically, the stage final of analysis
would be whether the error was harmless.
However, government did not make fact, argument. In at oral argument, government explicitly con point. By
ceded this hanging its hat on sole issue of whether there error, government any argument waived
the error was harmless. United States v.
Varela-Rivera, I would reverse and remand
for a new trial. MAROPULOS;
Theodore Donna Maro
pulos; Jacobo; Danielle Nathan Mar
opulos; Maropulos; Elizabeth Aaron
Maropulos; Maropulos; Katherine Maropulos;
Shannon Thomas Maro
pulos, Plaintiffs-Appellees,
COUNTY ANGELES; OF LOS Baca, Defendants,
Lee Lankford,
Steve Defendant-Appellant.
No. 07-55873.
United States of Appeals,
Ninth Circuit.
Argued and Submitted March 2009.
Filed March Notes 43(a) Advisory Committee in a bench trial with- knowing participation ing 1996 amendments.4 consti- may be sufficient objection out set trial was day, as following White, at jury waiver. a tute that whatever commence, Palmer realized County Los Although Solis 703. his made to secure belatedly had he efforts (9th Cir.2008), 946, 956 F.3d Angeles, appear- their produced had ain every participation “[n]ot holds having prospect Facing ance. the waiv- consent trial constitutes bench wit- his jury without a case to his prove trial,” that the it affirms of a er suggestion nesses, seized on Id. may waived. stated day before and had been made brought had Solis, Solis noted that we In right to waive he would to the district demand prior by tele-