may please the court erik fletcher pro bono counsel for appellant curtis jackson i'd like to reserve two minutes for a bottle mr jackson asked the district court to appoint counsel three separate times each time the court denied his request and a matter of days by the time of mr jackson's third request for counsel he had survived summary judgment and he'd just been returned to general population after spending more than two weeks in the prisons mental health crisis facility in light of the seriousness of his case and obvious concerns about his ability to present it at trial the district court abused its discretion by not appointing counsel having well me the case which best says that the district discretion i would point the court to the decision in solis because because they are the court noted and remained in the case for further consideration of whether counsel should be appointed that multiple factors weighed in favor of appointing counsel those being that the plaintiff was incarcerated inmate that he had no legal training and that the case was headed towards trial but at that point the court was looking at the factors and trying to determine the factors and in this particular case the district court to have the person well in front of them making arguments doing what they had to do and the court determined that they did need counsel and applying the factors if the if isn't the court's decision on whether to appoint counsel a discretionary one it is a discretionary decision so therefore i don't find solace being that anybody said as a matter of law the district court had to do that so i would again point the fact the court to the to mean i solis when i read the day i read what it said it didn't say as a matter of law you must appoint now right i said let's weigh the factors as the district court did hear analysts determine it and they determined that the factors were sufficient to say something in our test is abuse of discretion it is a piece of discretion that's right you're on a pretty tough it's very difficult to show that but i think the unique circumstances of this case that just weeks prior that if the case was originally slated for trial in late august and mr jackson spent more than two weeks in this crisis facility where he had no access to his legal papers yes but when he came out of the crisis center is as what would they would they say who has healed or what was said there is a note from the doctor i think in the record that says that mr jackson was able to participate in his case it's unclear whether the doctor talk this is this is the doctor the who was treating him during these two week period and he feels mentally he could participate the doctor mckenney did state that he could participate it's unclear from the record whether dr mckenney had any idea that mr jackson was expected to litigate the case by himself and that he didn't have counsel yeah i understand that could tell  it's very hard to show that the district judge looking at the facts of this case and the person coming out and saying a doctor saying he could participate where do we find an abuse of discretion that's the question i so i would also point the court  to the district court's analysis of the second factor and the task in the second factor asked the district court to evaluate the likelihood of success on the merits and the district court just has one sentence in their order on the likelihood of success and says that it cannot find that mr jackson is likely to succeed on the merits i think that was legal error the court's test does not require this was the best case for that so i would again point the mater bottom line is you've got the district court going through the test and he doesn't likely to win at trial without a lawyer and order to then have access to a lawyer instead i point the court to which says that a non frivolous claim is one that where the is not frivolous and here that's clearly the case it's gone through summary judgment so is your best argument that the discord erred in jackson's motion in the nyingma motion to appoint counsel or is your best case that the jackson was proceeding press say and rule seventeen of the rules of civil procedure says that the district court has an obligation when there is a serious question about the competency of a litigant to present his case when proceeding press say oh but that's a duty to again counsel that's with the district court looking down and saying can we proceed or candy proceed and the district court in this instance in his discretion thought he could proceed that's why i'm having you focus because it doesn't seem to me that there's any reason to conduct a competency hearing suicide bomb pay if one feels he can proceed was it so again thing in the record to suggest they should have done that so i'm trying to get you to are you really saying we're after in here for because he needed a motion to appoint counsel that's where he was was wrong or what do you do or are you talking about well so i do think we are really here because mr jackson was entitled to appoint a counsel by the time of his third motion and the alternative given the serious issues raised in mr jackson's motion for appointed counsel on the third mission in particular the court was under an obligation to conduct a competency hearing they could mckinney's testimony about whether or not mr jackson was able to participate versus actually litigate the case so how many motions does one make before the judge must have the well i think it depends on what the facts are that are alleged in the motion and it depends on how the other person acts and reaction front of the judge does not i think that's right yes and in this particular case  the person acted and reacted as has he should have in front of this judge for at least as this judge thought he should have and in fact the judge was looking at every one of his motions giving him consideration in what was going on mr jackson again i would point the court to defer the motion which is that actually a record for twenty three to four twenty five where he is pleading with the court to appoint counsel and raising his inability to manage all of the issues in the case there's a briefing on the status conference that occurred on september third while mr jackson's motion for appoint counsel was in the mail excuse me the hearing was on september second the motion was docket it on september third and denied september fourth from the record it appears that mr jackson did not discuss his pending motion for appointment of counsel with the court so again there were reasons to be quite concerned and to just dismiss mr jackson's request for appointed counsel out of hand on one day of consideration i think was an abuse of discretion i see that my my time implausible scenario and had to admit several damaging facts during the course of the trial so the jury found for the defense now this court is generally loathe to disturb judgments based on jury verdicts because of the  during the middle of this process he was in this facility getting treatment he went in the district court knew he went in and given that the district court knew he went in there and in the midst of this seems the district court should have done more than just say proceed understood your honor we disagree we think the desire no you just agree but what's your best case for the best case for that is probably palmer vs valdez is a good case for us in assessing and the need to know how does homer relate to this particular situation where there is something unique to the situation versus palmer palmer involved are you going to say this is different than palmer yes are palmer did involve a litigant who was complaining that they did not have the ability to prepare because of right visible ailments and the court made accommodations and applied the relevant legal standard and determined that the litigant could proceed to trial it turned out that the plaintiff in that case was in fact commended by the district court for his performance at trial in this court consider that when concluding that there was no abuse of discretion in denying the much for counsel in this case the pla appointment of counsel and the district court applied the relevant standard analyzed mr jackson's apparent ability to represent to articulate his claims process a and light of their complexity and his likelihood of succeeding on the merits the court expressly considered the fact that he had had a mental health episode but i said that but relied on several factors in determining that that did not impede his ability to represent himself and articulate his claims the most important which i think is that there was a phone conference at which mr jackson stated that he was able to proceed he was ready to proceed the case in addition to that the court considered his actual engagement during that teleconference his ability to articulate himself and make clear his intentions including his intention to file a motion for reconsideration as to one of the motions in limine and his the motions that he filed in june and july which was prior to this episode and the letter from the psychiatrist saying that he had stabilized as of early august which was a month before that hearing and ultimately four months before trial he said case in which mr jackson was going to present one version of events which we believe was implausible and correctly discounted by the jury and the defendants all all disagreed with that now the factual scenario that jackson presented was that i mean he is not a small man he acknowledged he is six foot three and two hundred forty pounds and that because he is paralyzed from the waist down and his legs are flacid and so any attempt to lift him is like lifting dead weight but his allegation was that  sergeant mendez a smaller man snatched him from his chair sent him an airborne and slammed him on the ground and the jury could see observing the two people that was not likely to be true when jackson introduced additional impossible facts such as the fact that he insisted he was vehement that his hands were not cuffed merely behind his back were in fact cuffed all the way around the back of the wheelchair underneath the handles that one would use to push the chair and having committed to that fact the jury likely concluded that chronological and clear opening statement he then followed that up with his direct testimony which was also clear and easy to decipher he cross examined each of the defendants and pointed to places where he believed that he had identified and consistencies between their testimony and you wrap it up with a closing argument that had a cohesive theme and recounted where he believed he had successfully impeach the witnesses so we believe the court successfully and correctly concluded that there were no exceptional circumstances here did not abuse his discretion in refusing to a point counsel now i'd like to move back to the evidence three issues the court made some successful and correct rulings on evidentiary issues before trial and during trial and this court reviews of those issues for an abuse of discretion and to obtain reversal it was jackson's burden to establish both that there was an error and that that error was prejudicial and that is based in part on a rule federal civil procedure sixty one which says that even if there is assuming there is an eviden trying to introduce is evidence of other allegations other situations in which inmates have alleged that sergeant mendez had used excessive force against them now i would point out that jack mr jackson was unable to identify a single case in which this court had found that excluding civil or similar evidence under similar circumstances was an abuse of discretion and that likely has to do with that high standard of review you know the district court in this case excluded the evidence on both for a for b grounds and fo three grounds we believe that both of those rulings were appropriate and rule for a for b you mr jackson was required proof or elements to introduce the evidence one of those was that the evidence was sufficient to establish that those prior incidents actually occurred in this case we were dealing with highly contested allegations of use of force and the court was aware that if it allowed that evidence to come in the defense would bring in additional witnesses who would contest each of those witnesses accounts of what have so you believe the court was within its discretion to conclude the evidence wasn't sufficient we weren't dealing with official reprimands or educations it was just allegations that point so within its discretion to find that that element wasn't satisfied and that the evidence would be excluded under rule for a fourth be the court also properly articulated its rationale for excluding the evidence and rules for zero three finding that the potential for prejudice outweighed substantially await the probative value of that evidence and it does so on pages twenty eight to thirty two of the record and again on page fifteen of the record in the ruling on a motion for reconsideration of the exclusion of that evidence and the two things that the court pointed to who were in it and it already analyzed rule four of four b which in is inherently has an inherent prejudicial factor  evidence issues i think your toughest one is that he would the court wouldn't even allow the attendance of the inmate who witnessed the interaction you referring to witness only all right understood we believe that the court correctly ruled that that with that it should not bring that witness to testify and in effect exactly excluded that when this is testimony the witness was going to testify to an event at that time both parties had agreed did not happen the witnesses primary purpose was to say that he witnessed sergeant mendez apply the handcuffs to mr jackson now there was previously a claim based on mr sort of mendez using excessive force in applying those handcuffs but the court dismissed that clade case on some of that claim on summary judgment when mr jackson didn't dispute that sort of mendez wasn't the person to apply the handcuffs so it is an issue the plaintiffs selfhood removed from the case i'm sorry it was just it was an issue the plaintiff himself had removed from the case yes your honor then the plaintiff having removed that issue from the case was then seeking to eventually bring more evidence and relating to it but if one looks at the actual statements in the the affidavit of this witness o'neill the statements themselves don't really even further anything about sergeant mendez's state of mind even at that time any issue that would warrant a disturbing the judgment after a fully litigated trial in this case so we ask the court affirm thank you thank you reserves for your time yes your honor thank you i'd like to turn briefly to the allegation of factual implausibility and mr jackson's claims mr jackson is a paraplegic he was undisputedly handcuffed and sergeant mendez's testimony was that mr jackson threw himself from his wheelchair that he became quite agitated at the medical facility facility then threw himself from his wheelchair then immediately calmed down as sergeant mendez then tried to assist him back into the wheelchair and uncuffed him so as far as factual event whatsoever i'd also like to turn briefly to the o'neill testimony which i think goes to the factual plausibility of what happened it's true mr o'neill's affidavit did mention who handcuffed mr jackson affidavit also referred to mr jackson's calm demeanor it made clear that mr o'neal's saw or heard statements that mr jackson was making at that time to sergeant mendez and the other officers present and that was directly relevant to what then happened in the medical facility where there were no other witnesses who were present it went directly to sergeant mendez's version of events that mr jackson became so agitated that he would throw himself deliberately from his wheelchair it's implausible that that would be the case if mr jackson was calling just moments earlier thank you if the court has no further questions thank you  argument california thank you for serving pro bono we pushed we felt we felt the case needed in a lawyer in the lawyers in this area have been generous with their time when we felt we needed one to  of case one five seven three five eight four years submitted on the