Willie Lee Carpenter v. A. PFEIL, Correctional Sgt.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE LEE CARPENTER,
Plaintiff - Appellant,
v.
A. PFEIL, Correctional Sgt.; J.
GONZALEZ, C/O; J. BARAJAS, C/O;
ORTIZ, C/O; A. SALAZAR; J.
MARTINEZ; LITTON,
Defendants - Appellees.
No. 14-15739
D.C. No. 1:07-cv-00114-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding
Argued and Submitted May 11, 2015
San Francisco, California
Before: BENAVIDES**, N.R. SMITH, and OWENS, Circuit Judges.
Plaintiff-Appellant Willie Carpenter (“Carpenter”), a state prisoner, brought
this action under 28 U.S.C. § 1983 alleging use of excessive force and failure to
FILED
JUN 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

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protect by correctional officers in violation of the Eighth and Fourteenth
Amendments. On appeal, Carpenter argues that he was denied a fair trial for his
§ 1983 claims in a number of ways: (1) the district court allowed him to be held in
shackles throughout the two trials without first holding a hearing to determine
whether shackles were necessary; (2) the district court abused its discretion in the
management of trial, particularly by failing to intervene in violations of the Federal
Rules of Evidence; and (3) the district court denied Carpenter’s repeated requests
for counsel. We address each issue in turn and we affirm.
1.
As an initial matter, Carpenter did not object to being held in restraints.
Carpenter’s comment regarding his restraints—which he seeks to characterize as a
proper objection—was not a request for modification or removal of the restraints.
During a sidebar prior to closing instructions in the first trial, when asked by the
district court whether he would argue from the table or whether he would stand,
Carpenter responded, “But then the chains going to make noise. They already
know I’m in jail.” Carpenter made no mention of the restraints during the second
trial. Because he did not object to the issue he brings on appeal, we review for
plain error. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002).
Under such a review, we reverse “only when there is (1) error that is (2) plain,
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(3) affects substantial rights, and (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Flyer, 633 F.3d 911,
917 (9th Cir. 2011) (quoting United States v. Cruz, 554 F.3d 840, 845 (9th Cir.
2009)).
No plain error occurred here. We have held that criminal defendants may not
be shackled during criminal trials and sentencing proceedings before juries without
compelling circumstances that restraints are needed, and that district courts must
pursue less restrictive options before imposing restraints. Duckett v. Godinez, 67
F.3d 734, 747-49 (9th Cir. 1995). We have also recognized that binding someone
in restraints during a state involuntary commitment hearing, while in the presence
of the jury, may violate due process. Tyars v. Finner, 709 F.2d 1274, 1284-85 (9th
Cir. 1983). In Tyars, we also noted that “criminal case precedents do not
necessarily apply in a civil proceeding,” but nevertheless applied a similar
balancing test. Id. at 1285; see also Duckett, 67 F.3d at 748 (noting that “when an
individual’s level of dangerousness is a question the jury must decide in a civil
proceeding, it is a violation of the right to a fair trial to compel that individual to
appear before the jury bound in physical restraints”). However, we do not have
precedent that establishes a district court’s duties (such as holding a hearing) in
determining whether an inmate should be shackled during a civil trial. This case
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does not give us occasion to adopt such a rule.1 Even were we to adopt the
approach taken by other circuits, there is nothing in the record to show that
Carpenter was prejudiced by being held in restraints. There is nothing in the record
that indicates that the jury could see that Carpenter was kept in restraints. Indeed,
his expressed concern about the jury potentially hearing the chains, noted above,
came toward the end of his first trial and suggests that the jury did not already
know about the chains. Thus, we conclude that the district court did not commit
plain error as to this first issue.
2.
This Court “will reverse a district court’s litigation management decisions
only if it abused its discretion, or if the procedures deprived the litigant of due
process of law within the meaning of the Fifth or Fourteenth Amendments.” S. Cal.
1 We note that the district courts ought to be cognizant of this issue. Other
circuits have held that “requiring a party in a civil trial to appear in shackles ‘may
well deprive him of due process unless the restraints are necessary.’” Sides v.
Cherry, 609 F.3d 576, 581 (3rd Cir. 2010) (quoting Davidson v. Riley, 44 F.3d
1118, 1122 (2d Cir. 1995)); see also Lemons v. Skidmore, 985 F.2d 354 (7th Cir.
1993); Holloway v. Alexander, 957 F.2d 529 (8th Cir. 1992). These other circuits
have required district courts to hold proceedings to allow parties to offer arguments
on the need for restraints, to hold an evidentiary hearing if genuine and material
factual disputes exist as to the need for restraints, to weigh the need for restraints
against potential prejudice to the inmate, and to take measures to minimize
prejudice to an inmate who must appear in court in restraints. See Sides, 609 F.3d
at 586; Davidson, 44 F.3d at 1122-23, 1125-26; Lemons, 985 F.2d at 358-59; see
also Holloway, 957 F.2d at 530.
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Edison Co. v. Lynch, 307 F.3d 794, 807 (9th Cir. 2002) (internal citation omitted).
“A district court’s evidentiary rulings are also reviewed for abuse of discretion, and
the appellant is additionally required to establish that the error was prejudicial.”
Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004).
Carpenter’s argument focuses primarily on the district court’s allowance of
leading questions on direct examination by the Defendants. Rule 611 of the Federal
Rules of Evidence states, “Leading questions should not be used on direct
examination except as necessary to develop the witness’s testimony.” Fed. R. Evid.
611(c). “Rule 611(c) vests broad discretion in trial courts, and we will therefore
reverse on the basis of improper leading questions only if ‘the judge’s action . . .
amounted to, or contributed to, the denial of a fair trial.’” Miller v. Fairchild
Indus., Inc., 885 F.2d 498, 514 (9th Cir. 1989) (quoting Cleary, ed., McCormick on
Evidence 12 (1984) (footnote omitted)). “An almost total unwillingness to reverse
for infractions has been manifested by appellate courts.” Fed. R. Evid. 611 note to
subdiv. (c) (citing 3 Wigmore § 770).
The instant case does not call for deviating from the standard practice of
granting broad discretion to the district court’s allowance of leading questions. The
most potentially concerning line of questioning—regarding the Department’s use-
of-force policy, addressed to Defendants Jose Gonzales (“Gonzales”), Juan Barajas
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(“Barajas”), Richard Litton, and Michael Ortiz—was also developed through non-
leading questions to Gonzales, Barajas, and most significantly by William Adams,
who was tendered as an expert in the Department’s use of force. See Miller, 885
F.2d at 515 (finding that reversal on the basis of improper leading questions was
“inappropriate . . . because the testimony elicited through leading questions did not
substantially expand or alter earlier testimony elicited through proper, non-leading
questions”). Thus, any error was not prejudicial.
In addition, we find no abuse of discretion in the other trial-management
concerns raised by Carpenter—namely, that the district court inappropriately
allowed references to Carpenter as “inmate” and did not sufficiently intervene
when the officers began “maddogging” the prisoner witnesses—which have not
been briefed in detail.
3.
A district court’s denial of a motion for request of counsel under 28 U.S.C.
§ 1915 is reviewed for abuse of discretion. Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986). Counsel may be designated under § 1915(e) only under
“exceptional circumstances.” Id. “A finding of exceptional circumstances requires
an evaluation of both ‘the likelihood of success on the merits [and] the ability of
the petitioner to articulate his claims pro se in light of the complexity of the legal
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issues involved,’” neither of which is dispositive. Id. (alteration in original)
(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)).
Carpenter urges the panel to limit or overrule Wilborn. However, Wilborn
has not been overruled by a subsequent ruling by this court sitting en banc or the
Supreme Court. See Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993)
(“[O]nly the court sitting en banc may overrule a prior decision of the court.”); see
also Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)
(“recogniz[ing] that circuit precedent, authoritative at the time that it issued, can be
effectively overruled by subsequent Supreme Court decisions that ‘are closely on
point,’ even though those decisions do not expressly overrule the prior circuit
precedent” (quoting Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1123 (9th
Cir. 2002))).
Carpenter requested counsel in 13 filings, and at the beginning of each trial.
The district court considered the “exceptional circumstances” standard and
concluded that the case was not complex and did not require the appointment of
counsel. Having considered the arguments of counsel, the record, and the nature of
the proceedings, we find no abuse of discretion.
AFFIRMED.
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