Appeal from the United States District Court for the Northern District of California D.C. No. CV-03-04213-SI Susan Yvonne Illston, District Judge, Presiding.
The opinion of the court was delivered by: Callahan, Circuit Judge
Argued and Submitted August 11, 2008 -- San Francisco, California
Before: Eugene E. Siler, Jr.,*fn1 M. Margaret McKeown and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge McKeown
William Palmer, a California state prisoner, appeals from the district court's judgment in favor of prison officials in his pro se 42 U.S.C. § 1983 action alleging violations of the Eighth Amendment. Following a bench trial, Palmer argues that the district court erred by (1) imposing an unconstitutional condition on Palmer's waiver of his right to trial by jury, and (2) denying Palmer's request for the appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We affirm the district court's decision.
On September 16, 2003, Palmer filed a complaint under 42 U.S.C. § 1983, alleging that six prison officials violated his Eighth Amendment rights by using excessive force on two separate occasions. Proceeding pro se, Palmer properly requested trial by jury.
As the case proceeded, Palmer made three motions for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). On August 23, 2004, Palmer argued that counsel was warranted because he lacked the ability to conduct necessary discovery while incarcerated. On January 4, 2005, Palmer argued he had recently incurred an injury that caused him severe pain while sitting thus making it difficult to draft and review necessary documents to effectively litigate his claim. On December 5, 2005, Palmer argued that counsel was necessary because he had been denied access to his legal documents for three months as a result of prison officials' actions and because he was suffering debilitating pain from an unsuccessful surgery that made it difficult to draft and review documents. The district court denied each motion.
A month later, on January 12, 2006, the court issued an order setting the pre-trial conference date for February 6, 2006, and a trial date of February 7, 2006. In the court order, the court noted that subpoena forms for four non-inmate witnesses had been sent to Palmer. Palmer's criminal investigator, whom Palmer asked to serve additional copies of these four subpoenas, was present when the trial date was announced. Later in open court, the pre-trial conference was moved to January 30, 2006, and the trial date was set for January 31, 2006. In addition to the four non-inmate witnesses, on January 18, 2006, the court received and issued Palmer's writs of habeas corpus ad testificandum for inmates Halbert and Singleton.
Palmer received the subpoena forms, completed them, and returned them to the court in time for them to be issued on January 26, 2006. Palmer received the issued subpoenas on January 30, 2006, during pre-trial conference, and stated that he intended to have them served before trial the next day.*fn2
On January 24, 2006, Palmer mailed a motion requesting that thirteen witnesses be permitted to testify by telephone; the motion was filed by the district court on January 30, 2006.*fn3
Palmer alleged that he had been denied the privilege of using the phone while incarcerated, and had not been able to secure loans from friends to ...