                                                                            FILED
                           NOT FOR PUBLICATION                               JUN 09 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WILLIE LEE CARPENTER,                            No. 14-15739

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00114-SAB

 v.
                                                 MEMORANDUM*
A. PFEIL, Correctional Sgt.; J.
GONZALEZ, C/O; J. BARAJAS, C/O;
ORTIZ, C/O; A. SALAZAR; J.
MARTINEZ; LITTON,

              Defendants - Appellees.


                    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

        *
             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.
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,


                                           2
(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


                                             3
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.

                                            4
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


                                           5
(“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


                                            6
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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