Will Moses PALMER, Plaintiff-Appellant, v. M. VALDEZ; N. Walker, Sergeant; R. Lebedeff; S. Henley; B. Gibbs; G.R. Salazar, Defendants-Appellees, 560 F.3d 965

CALLAHAN, Circuit Judge: 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.

I 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 pretrial 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.

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. 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 cover the costs of serving subpoenas. One of Palmer’s witnesses, Singleton, had verbally refused the January 18, 2006 court order to appear voluntarily.

The court offered to have Singleton extracted from his cell and brought to court to testify, but Palmer had declined to have Singleton compelled to testify in person. At the pre-trial conference, held on January 30, 2006, Palmer again moved for Singleton, who Palmer thought was a “very important” witness, to testify tele-phonically. The court declined the request noting that the jury would have a right to see the witness and that the' courtroom did not “have the high-tech video screens and that kind of thing.” Defendants’ counsel inquired whether Palmer would want to waive the jury.

The court stated that it did not want to put any pressure on Palmer and Palmer indicated that he was not inclined to waive the jury. Accordingly, the court did not change the date for the jury trial, which was scheduled to begin the next day. At the beginning of trial on January 31, 2006, Palmer recognized that most of his witnesses were not present and made a motion to continue. Palmer asserted that his witnesses had been confused over the date of the trial. The defendants objected to a continuance.

The district court denied Palmer’s motion noting that the defendants and all of defendants’ witnesses were present and that Palmer’s witnesses were unavailable due to his failure to serve the subpoenas, as opposed to confusion over the trial date. Palmer then requested that his witnesses be permitted to testify by telephone. He stated: “You gave me another alternative yesterday, I guess, in the event that some of these witnesses wouldn’t be here. That would be to have a judge trial where you can — we can use the telephonic method.” He continued: “[this] means like present my witnesses through the telephone.

So if they’re not going to be here personally, I would like to at least have a judge trial where we can do that— the witnesses on the stand by phone, whatever.” The court asked Palmer if he wanted to waive a jury, and Palmer responded that he did if his witnesses could testify by telephone. The defendants agreed to waive trial by jury, and the dialogue concluded with the following exchange: THE COURT: All right. Well, [the defendants] are willing to [waive trial by jury.] Is that what you want to do? MR. PALMER: I don’t really have a choice, your honor. Yes. THE COURT: You do have a choice.

You can go forward with the jury trial right now if you want, or you can waive it. I don’t care. It’s up to you. MR. PALMER: I’ll waive it. The district court then held a three-day bench trial at which fifteen witnesses testified. Palmer made no objection to the bench trial either during or after the trial. At the conclusion of the trial, the district judge entered findings of fact and conclusions of law and ruled that Palmer take nothing on his complaint. Palmer filed a timely notice of appeal to this court.

II On appeal, Palmer challenges the loss of his right to jury trial. “The right to a jury trial is a question of law reviewed de novo.” Kulas v. Flores, 255 F.3d 780, 783 (9th Cir.2001). The Seventh Amendment guarantees the right to a jury trial “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars.” U.S. Const. Am. VII. Like other constitutional rights, the right to a jury trial in civil suits can be waived. See United States v. Moore, 340 U.S. 616, 621, 71 S.Ct. 524, 95 L.Ed. 582 (1951); Kulas, 255 F.3d at 784.

A valid waiver in a civil trial “must be made knowingly and voluntarily based on the facts of the case.” Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 222 (3d Cir.2007); accord Nat’l Equip. Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir.1977). Furthermore, any party’s “knowing participation in a bench trial without objection is sufficient to constitute a jury waiver.” White v. McGinnis, 903 F.2d 699, 703 (9th Cir.1990) (en banc). Palmer contends that the district court imposed an unconstitutional condition by allowing telephonic testimony only before a bench trial. We disagree.

The record shows that the bench trial was a strategic choice by Palmer arising out of a dilemma of his own making. Leading up to the trial, Palmer had rebuffed the. court’s offer to have his key witness extracted from his prison cell after the witness refused to voluntarily appear. Moreover, on the eve of trial, Palmer realized that he had failed to ensure the presence of a number of his witnesses. He then renewed his request to be allowed to present telephonic testimony.

Federal Rule of Civil Procedure 43 provides that a court may, in its discretion, allow the telephonic transmission of testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.” The district court denied the motion. Palmer agrees that it was within the district court’s discretion to deny the motion and we find that the court did not abuse its discretion in doing so. See Fed. R Civ. P. 43(

a) Advisory Committee Notes addressing 1996 amendments. The following day, as trial was set to commence, Palmer realized that whatever efforts he had belatedly made to secure his witnesses had not produced their appearance. Facing the prospect of having to prove his case to a jury without his witnesses, Palmer seized on a suggestion that had been made the day before and stated that he would waive his right to a jury trial if he could present his witnesses by telephone. Palmer did not request that he be allowed to present telephonic testimony to the jury.

The district court determined that the defendants would agree to waive their right to a jury trial and questioned Palmer to make sure he understood his request. It then granted Palmer’s request and a bench trial ensued. At no time following the district court’s grant of his request to present telephonic testimony in a bench trial did Palmer advise the district court that he thought that he had been improperly denied his constitutional right to a jury trial.

An individual may waive his or her right to a civil jury trial and we have held that knowing participation in a bench trial without objection may be sufficient to constitute a jury waiver. White, 903 F.2d at 703. Although Solis v. County of Los Angeles, 514 F.3d 946, 956 (9th Cir.2008), holds that “[n]ot every participation in a bench trial constitutes consent to the waiver of a jury trial,” it affirms that the right to a jury trial may be waived. Id. at 953.

In Solis, we noted that Solis had brought his prior jury demand to the district court’s attention during the period between the bench trial notice and the trial, and had reiterated his demand for a jury trial in his second motion for counsel that was filed after the district court held that he had waived his jury right. Id. Here, by contrast, it was Palmer who sought to waive his jury right in response to his failure to procure the attendance of his witnesses.

Moreover, he never suggested to the district court that his proposed resolution of his problem constituted an improper conditioning of his constitutional' right to a jury trial. On this record, we conclude that Palmer knowingly and voluntarily waived his right to a jury trial and that the district court’s acceptance of Palmer’s waiver did not violate his constitutional right to a jury trial. Ill Palmer also challenges the district court’s refusal to appoint counsel to assist him. A district court’s refusal to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) is reviewed for an abuse of discretion.

See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir.1998). Generally, a person has no right to counsel in civil actions. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981). However, a court may under “exceptional circumstances” appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128, 125 S.Ct. 2941, 162 L.Ed.2d 867 (2005).

When determining whether “exceptional circumstances” exist, a court must consider “the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983). Neither of these considerations is dispositive and instead must be viewed together. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986).

Palmer asserts that he should have been appointed counsel because he was likely to succeed on the merits, the pain from his surgery limited his ability to prepare for trial, and prison officials had denied him access to his legal documents, thereby limiting his ability to prepare for trial. The district court was sensitive to Palmer’s predicament. It questioned Palmer and defense counsel before trial to ensure that Palmer had sufficient access to his legal documents, and it limited the length of the trial days and provided three break periods.

At the conclusion of the trial, the district court noted that Palmer had done “quite a good job” putting on his case, and that he was well-organized, made clear points, and presented the evidence effectively. We conclude that Palmer has not made the requisite‘showing of exceptional circumstances for the appointment of counsel and that the district court did not abuse its discretion in denying his requests for the appointment of counsel.

See Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully the complexity of the relevant issues was a demonstration of the need for development of further facts, practically all cases would involve complex legal issues.”). For the foregoing reasons, the district court’s judgment in favor of the defendants on Palmer’s civil action is AFFIRMED. . On appeal, Palmer does not challenge the timing of the court's mailing of the subpoenas. . Palmer requested telephonic testimony for thirteen witnesses. Ultimately six of the witnesses testified during the bench trial. . Fed.R.Civ.P. 43(

a) provides: At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. . The Advisory Committee Notes to the 1996 Amendments contain the following advice: Contemporaneous transmission of testimony from a different location is permitted only on showing good cause in compelling circumstances.

The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face. is accorded great value in our tradition. The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place.

A party who could reasonably foresee the circumstances offered to justify transmission of testimony will have special difficulty in showing good cause and the compelling nature of the circumstances. . Federal Rule of Civil Procedure 38(

d) provides that a proper demand for a jury trial "may be withdrawn only if the parties consent.” The defendants here were not compelled to agree to Palmer's waiver of his right to a jury trial and request to present telephonic testimony. If they had not waived their right to a jury trial, Palmer presumably would have had to present his case to a jury as best as he could. . Palmer’s comment to the district court — "I don’t really have a choice” — did not invoke his constitutional right to a jury trial. Indeed, the court responded that Palmer did have a choice; he could go forward with a jury trial or waive it.

Palmer simply responded that he would waive a jury trial. Such a short colloquy at the commencement of a civil trial, when the plaintiff is trying to adjust to the absence of many of his witnesses, does not indicate that the plaintiff is invoking his constitutional right to a jury and does not put the court or the defendants on notice that a constitutional right has been invoked.