in this lawsuit mr thomas product excessive force and first amendment retaliation claims that survived all the way to trial at that point the district court had a duty to ensure that mr thomas as an unrepresented litigant got a fair opportunity to present those claims to the jury but the district court in this case did not fulfill that duty and instead in its efforts to manage the case it made a series of iranians rulings that deeply prejudiced mr thomas and deprived him full and fair hearing i'd like to focus on the following four errors made by the district court first the district court exclude excluded a broad category of directly relevant testimony second the district court excluded two  witnesses on permissible grounds third the district court disregarded mr thomas and in testimony when he granted partial gottman as a matter of law to the defendants and finally the district court completely failed to rule thomas last two requests to recruit pro bono counsel and i'd like to start with the exclusion of testimony issue the district court refused to allow any testimony relating to any events before march twenty fourth tw eleven which is twenty eleven which is the day that mr thomas alleges that the defendants beat him up and filed fost false disciplinary charges against him the district court took the position that that testimony was irrelevant but it was in fact relevant to mr thomas claims and one category of three march twenty four evidence testimony in particular would have been relevant while now  unable to communicate with most of his potential witnesses because of prison regulations that forbid inmates from communicating with really sees or inmates at other facilities so he could not be sure that that's what they would testify to but the his understanding was that they were they had knowledge of those threats yeah it appears as if thomas would be unable to communicate with potential inmate witnesses couple of days ago he told me that he did try he wrote warden it's trying to get approval and that you're never going to happen but it's not of the work it's not in the record but the defendants never dispute his claim that he was not able to communicate with these witnesses they didn't dispute that for the district court and they haven't disputed it in their brief in this court so the threat evidence would have been relevant for two reasons first it would have been relevant to proving anderson's retaliatory intent if he had told thomas in the past that he was going to retaliate against him i'm going to interrupt you here for short because our time is limited and the point of the interruption is to make the obvious point that the trial court's time is also limited and these cases are not the prisoner's opportunity to command the maximum resources of the district court and i was struck by the amount of time that the district court invested in this case and the careful attention that he paid to the scope of the trial and listening to both sides about what the issues that necessitated a trial actually were and so the the temp oral limitation that the judge put on the scope of the proofs in the case limited to this incident on march twenty fourth two thousand and eleven plus the stipulation that thomas had filed multiple grievances against anderson and others was enough to fairly present the case to the jury and your client had corroborating witnesses at least one corroborating witness that he was allowed to present and that seems to me quite fair obviously the district court has discretion to try to manage the case and to streamline it for trial but in this case the absence of preparation or the yes the absence of corroboration was hugely prejudicial thomas it's something that the defendants return to multiple times during their closing arguments and given how important it was for mr thomas to be able to corroborate his testimony the district court should not have required him to choose ahead of time between two witnesses neither of whom he'd had the opportunity to speak with before trial the in a way the situation the district court found itself in was a function of its refusal to appoint counsel f really not yes the word got around but this is different this is a straightforward excessive force allegation and retaliation allegation what do we know about the nature of his injuries from the incident as the record contain medical records documenting their injuries yes he did have a black eye that that is in the record of the hand there was testimony from one of the witnesses that he did have a black  e so there is there is evidence in the record that he suffered an injury and to the extent that mr mills the corroborating witnesses did corroborate testimony he was able to say that mr thomas was thrown against the glass which the district court discounted a few minutes later by saying he didn't remember that such testimony had happened so that was another reason why mr thomas was unable to corroborate his testimony he remembered an inmate being thrown against the glass then a few seconds later the district court said i don't remember any testimony about about anyone being thrown against the wall and i think in front of the jury  yes this was after mr thomas tried to summarize bill's testimony as part of another question i assume the jury got the customary instruction that only what the witnesses stay on the stand is evidence nothing the lawyers say nothing r as i just said in terms of the exclusion of lander's it was premature for the district court to scoot him before mills had even testified i believe that it's no that's not how these motions are handled the judge has to make a decision before trial about how to plan your honor at the defendants were allowed to win during voir dire when they were asked to tell the jury what witnesses they were planning to call they listed no fewer than twenty one witnesses the defendants were giving them a lot of leeway to keep a lot of witnesses on their witness list before trial started they simply just didn't call all of them when they realized that they didn't need them the district court could easily have kept  landers on the witness list and made him available for trial and simply not call him if it turned out that mills testified the way mr thomas expected him to that was not a huge imposition on the district court's time or  this by trying to characterize mr thomas as a serial complainer a an inmate who thinks he knows the rules of the institution better than the prison does so in this i'd like also to discuss briefly the rule fifty issue the district court granted partial judgment as a matter of law to the defendants to four of the defendants and every time it gave the same reason and that that was that there was no evidence of retaliatory intent and no evidence that any of the four defendants in question knew about mr thomas's first amendment activity but in each of those cases mr thomas himself provided testimony that the defendants knew about his first amendment activity and that they were motivated by what the district court essentially did it is either disregarded mr thomas's o testimony which he was not entitled to do or it viewed the light the testimony in the light most favorable to the defendants which it was not entitled to do or it made a credibility terminations but it should've left those that terminations to the jury his retirement or words to that effect there is there was testimony to that effect but there was also testimony that sanders knew about mr thompson's first amendment activity that was thomas's own testimony that that's right your hon in each of these cases thomas thomas himself testified that and what was the basis for that testimony about sanders in fact bailey he testified that they made a statement right out you know you shouldn't have made all those sanders's presence which it is that what he testified that's right sanders was there and heard that yes that was that's the hearing when his disciplinary charges were heard and i think it's important to know that the defendants never questioned that this was sufficient testimony to go to the jury on this issue instead what they do is seek to provide alternative bases for affirming the district court here but none of those bases have any merit for example for  which show that a defendant doesn't have to metaphorically be the one who pulls the trigger to be liable under section one thousand nine hundred three here or there was mr thomas testified that anderson told cochran the other defendant to a recruitment request even though it was not styled as a recruitment would request as that was the case here the two recruitment requests in question are in the separate appendix if you want to take a look at them they're very clear that that is what terms of you know the court may want to revisit my request for counsel because i'm having trouble with these witnesses that's that's right roger and they are at the specific request in question all right pages twenty it please the court i am assistant attorney general linda watching hands on behalf of the defendants and abuse of discretion is much more than a simple disagreement with how the district court resolve the issue and it's much more than a preference for the court to have ruled in the party's favor instead an abuse of discretion occurs when the district court commits a serious error of judgment so that no reasonable person could agree with its decisions do you prefer to  is relevant only in the hey view purpose action is the state contending that there is some other way to secure the presence of then in may witness in court for any kind of trial and you know if so what would that be because i'm very troubled that the court excluded witnesses soley because there was no video conferencing available at the prisons your honor our contention is that a district court is required to issue subpoenas for indigent parties in criminal proceedings and in civil proceedings for writ of habeas corpus pursuant to section twenty two fifty five and in fact in the stone case which thomas relies heavily on the question was whether the inmate himself the plaintiff inmate himself was permitted to testify at his own trial and this court noted that even the prisoner does not have a constitutional right to present live testimony at his own criminal at his own civil trial rather so in stone the court set forth different factors that judges should consider when determining whether to secure inmate plaintiffs testimony in his own trial this court reiterated that it's a discretionary decision now with the state can see that threats made by interests who prior to march twenty four twenty eleven are relevant to prove anderson's intent on march twenty fourth two thousand and eleven the court's refusal to admit an me and any evidence prior to that day is terribly broad as far person could agree with the decision that the court me and in this case you know your honors this court has instructed district judges to use their authority under federal rule of evidence for the three to keep the trial within sensible bounds so at the time of this many more than just one witness he was able to present numerous witnesses at trial and you know the court also recognize that a part of his showing for the first men retaliation claims were these alleged threats but the court also recognized that interest in disputed having made those threats well look you know the state has asserted throughout that anderson's prior threats against thomas are irrelevant but thomas was required to prove that anderson's actions were in retaliation for thomas exercise of first amendment rights why wouldn't it be relevant that anderson had previously expressed displeasure with thomas frequent grievances and complaints that what could be more directly relevant to a central issue honor this court has noted that even relevant evidence can be excluded when as the district court concluded here it's probative value was substantially outweighed by a risk of confusion of the issues and to prejudice somewhat that rule is call the judges best friend rule for zero three it's used very liberally in this  is or perhaps i should say you know but the district court can exclude otherwise relevant evidence under these circumstances in this case the judge made a judgment call about whether the testimony and the grievances about these alleged prior threats were out of bounds and this court treats such determinations with great deference and will affirm unless the record contains no evidence on which the district judge rationally could have bas decision the judge also your honor reasonably exercised its discretion to remove simmons and landers from the proposed witness list so the backdrop for the court's decision to exclude their testimony was that thomas had proposed calling a considerable well number of witnesses at trial forty two reduced to twenty five reduced to eighteen this court has observed that district judges must have the power to limit the number of witnesses that a party can present at trial otherwise some trials would go on forever or what's more twenty one or eighteen sorry how much is more twenty one or eighteen twenty one ok but the defendant cases that you had the opportunity to so the record shows that the district court recognizes thomas right to call inmate as witnesses and to subpoena parolees and again the record shows that he had many witnesses at trial but the court wanted to avoid cumulative testimony so it asked thomas several times what he expected each witness to testify about course he did not able to talk to the witnesses pretty hard to do that with your hands tied behind your back that way your honor presumably he had some reason for naming them as witnesses so he expected that they had seen something and boy if we ran our civil trials like that  this would be quite a system with your honor's based or your honor based on his description of their expected testimony many of them would be testifying to the same thing and it's within the court's discretion not to allow duplicate testimony he expected feared milking landers to testify that they all saw the excessive force that was used against him and thomas actually thought that mills was in the best position to see what happened in response the court stated that three people didn't need to testify to the same thing that's not an unreasonable position for the court to take particularly in light of the difficulty that the parties had i don't know about that you know one is here one is there the record sack in a show that my hand is going out  here in my hands calling up there they're in different positions to see different things so i can accident case but your honor even if the court somehow eared in removing citizens and landers from the proposed witness list an error in preventing a witness from testifying the trial doesn't automatically entitled party to a new trial this court applies a harmless error rule that depends on what information the witness would have placed before the jury according by if thompson's version of events is correct the officers made sure that thomas could reach his cell in time to comply with the order you know calling eight minutes before well the guy is wet in the shower and the defense knew that when they issued the order they knew that so i officers could order a lock up for other reasons for example if there were some sort of incident at the prison he testified that they you know saw him in the shower and called lockup but he examined the defendant said trial and never asked why they called lock up at the time that they did he also presented no evidence that they called an early lockup for improper purposes he speculating that they did so to retaliate against him if there is no evidence to that effect and so as one reason an early lockup and i don't think they actually could have testified about that because they don't know only defendants know why they called walk up at the time that they did and thomas never asked them of that so we can assume given that silence that there was some improper purpose for calling a walk up and i think under even thomas's version of the facts he didn't make it back on time and so there was a proper basis for them to issue being late for i did anyone say he didn't get it and then time yes the defendants and i do understand that i understand your art your position your honor but i think given the fact that there is no there's no evidence of any retaliatory motive in their calling the lockup at the time that they did and the fact that you know there's it's questionable whether he made it back on time there's just not enough for a reasonable  himself testified your honor this court in green vs dora has stated that there are cases where the alleged retaliation as a motivating factor is so weak that although it's in the picture the retaliatory intent has no actual cause of force and we would submit that this is such a case wasn't there a jury question on that issue throw i am somewhat troubled by the judge's decision to take that issue from the  to set him up essentially for a disciplinary charge that the three officers saw him in the shower knew that he was going to be unable to or that it would be difficult for him to make it back to his cell if they called an immediate lockup ahead of the scheduled on and there was nothing he could do that seems to me to be a factual question for the jury to decide rather than an absence of proof motive always has to be inferred taken in a jury yes in our view the evidence wasn't strong enough to go to the jury but if this court disagrees and thinks that you know this evidence was sufficient for a reasonable jury to rule in his favor et me let me tell you you know why i'm i'm i'm i'm upset here i read the trial transcri when you you see that the court regular only ruled against thomas before the defendants even registered  here we judges not to deal with the lovely people like you and your opponent everyone else in the square but to be able to deal the people that might not be a slightly and i mean what when do you judges start to constantly rule before fair to both sides and its rulings were proper so with respect to the recruitment of counsel issue the district court conducted the analysis that's required by pruitt and it was well within the court's discretion not to recruit counsel for thomas because he demonstrated a capacity to coherently present his case to the jury you know i'm kind of interested in what you said about the different way you know we read the transcript because your honor i think that the i think the district court as i said by and large conducted a very fair trial and i don't see an abuse of discretion in any of the decisions that the court made well let me tell you where i see errors in the courts forbidding thomas from using any evidence part of march twenty fourth two thousand and eleven which meant he could not present witnesses who heard were allegedly applying the wrong standard by the way when deciding this issue number three applying the wrong standards when deciding whether to appoint counsel and  act on the last two requests as trial approached and the need for counsel became ever more clear and granting directed verdict store several defendants on several claims when the evidence showed contested issues of fact it's a mess it's a mess your honor of responding to the trial or rather recruitment of counsel issue as this court is well aware there are many many incarcerated pro se civil plaintiffs and there are not enough lawyers to represent them so the district court has to make choices about which pro se plaintiff needs counsel the most in this case this is not a case that turned on complex medical evidence this is the legal issues were not particularly complicated in the factual disputes were not complicated terms doesn't argue that he lacked competence to present his case he simply points to various challenges that he faced because he's a prisoner but this court has noted that all inmates face challenges conducting discovery and if that were the basis for recruiting counsel then he would be required in all civil cases and that is not the law the fact that a case is going to trial also doesn't obligate district court to recruit counts for a little in the language of section one hundred fifteen even one doesn't suggest a congressional preference for recruitment of counsel in any particular circumstance whether a case is going to trial is another factor that a court can consider but the court determined that it was not necessary in this case you know thomas doesn't dispute his competence and the record shows that he presented a very spirited defense of his positions at trial and at the pretrial conference with respect to the court not recognizing that the notices of compliance contain women within them requests for recruited counsel this court in pruitt said that a district judge has no obligation to reconsider the denial of an earlier request a recruited lawyer the court can consider it but it's not required to even if the plaintiff ultimately proves himself to be incompetent which is not the case here with regard to turning back to the question about the exclusion of the alleged prior threats the court entered in a stipulation which inform the jury that thomas had made many many complaints against about anderson and about those alleged threats in the the jury was presented with that stipulation and they were entitled to consider it as part of the evidence that was presented that the jury had no idea how those were resolved they were resolved against mr tom well so that i wouldn't that wouldn't i find it pretty helpful yes if you haven't you on that side yes right here oh yes thank you i went away for a few days they redesigned the whole place the standard of review which is abuse of discretion however our argument is that in each of these cases the district court made a legal error that tainted it it's discretionary analysis in the  me for evidence issue the district court took the position that this evidence was simply not relevant when in fact as we argued in our brief it was relevant and that tainted its fourth rule for three balancing analysis in terms disagree with that i would request the opportunity to make an extra filing with the court that that is always great thank you your honor  homes and then i'd like also to emphasize that so also that the my adversary suggested that there was insufficient evidence of the defendant's retaliatory intent at the march twenty four ever during the march twenty four events mr thomas testified for instance that anders told him while he was trying to get back to his cell or when he was about to have his disciplinary ticket written you should have thought about that before you made all of your complaints about me and filing grievances about me in the prison he testified that cochran stated he didn't like inmates who tried to get staff in trouble that's pretty clear evidence if believed of retaliatory  s and then just the last point a lot of the problems that the district court had in terms of streamlining the trial streamlining the number of witnesses timing and so on could have been a if the district court had appointed competent counsel since the district court declined to appoint counsel for mr thomas for the trial phase despite his request to do so the district court could not simply rely on the same case