The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER GRANTING MOTION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM (Document #66)
Plaintiff John Martinez, an inmate in the custody of the California Department of Corrections, brings this civil rights action against two prison guards for retaliating against him and being deliberately indifference to his safety. This action is set for trial on October 28, 2008.
On March 31, 2008, Plaintiff filed a motion for the attendance of incarcerated witnesses. While Defendants did not file a formal opposition to this motion, Defendants objected to the testimony of these witnesses in their April 30, 2008 pretrial statement.
1. Plaintiff John Martinez
Plaintiff asks the court to issue an order requiring prison officials bring him to court for the trial in this action. Plaintiff is advised that this court will issue a writ of habeas corpus ad testificandum directed to the warden of his current place of incarceration to bring him to trial to testify. This order will be issued after the trial date is confirmed.
Inmate Morales is willing to testify that he was told by Inmate Andy Rodriguez that there was a rumor Plaintiff was a homosexual. When Inmate Morales became Plaintiff's cellmate he asked Plaintiff about homosexual activity. Plaintiff denied any activity and informed Inmate Morales he was not a homosexual and the rumor was started by Defendant Lunes. Inmate Morales has been Plaintiff's cell mate for two and a half years and has come to the conclusion that Plaintiff is not a homosexual. Defendants object to this proposed testimony on the ground that it is hearsay. Defendants also claim that the fact Plaintiff and Inmate Morales never engaged in any homosexual behavior does not mean Plaintiff did not engage in the behavior with Inmate Radillo.
Based on the facts, the issue of whether Plaintiff engaged in homosexual behavior with Inmate Radillo is very relevant to this action. If the homosexual behavior did not occur, then Defendants had no reason to document such behavior. While it is entirely possible that Inmate Morales could have lived with Plaintiff for over two years and not realize Plaintiff engaged in homosexual behavior with others, Inmate Morales does have relevant knowledge of much of Plaintiff's conduct over a two year span. Thus, Inmate Morales's testimony is relevant, and he will be brought to trial. In addition, while Inmate Morales's proposed testimony about a rumor may be hearsay, this argument is better addressed in a motion in limine and is not a reason to decline to bring Inmate Morales to testify.
Inmate Dunn will testify that Defendant Lunes and Correctional Officer Perez made threatening comments concerning harming Plaintiff. Specifically, Inmate Dunn heard Defendant Lunes and Officer Perez discussing "kicking some one's ass." When Inmate Dunn inquired about who they were talking about, Officer Perez stated "Martinez in #17" and "some one should put a hurting to that boy." Defendants contend that these statements are hearsay. Defendants also claim this evidence is not material.
The court finds that this evidence is relevant to the issues in this action. Defendant Lunes' intentions toward Plaintiff when he had Defendant Chamalbide document what occurred in Plaintiff's cell is at issue in this action: Was Defendant Lunes acting out of a legitimate penological interest or was Defendant Lunes merely attempting to chill Plaintiff's First Amendment rights? In addition, the court is not confident that Inmate Dunn's testimony is hearsay and not subject to any hearsay exception, such as a statement against interest. Thus, the court will order him brought to trial.
Inmate Rodriguez will testify that Defendant Chamalbide told Inmate Rodriguez to warn Plaintiff to be careful because "IGJ" was talking about him. Defendant Chamalbide also told Inmate Rodriguez that she had caught inmates in a sexual act and asked whether it was a bad thing. Later, Defendant Chamalbide told Inmate Rodriguez that she was being pressured to write up a report about Plaintiff's behavior. Inmate Rodriguez will also testify about what could occur if a gang member engages in homosexual behavior and that when he confronted Plaintiff, Inmate Rodriguez came to ...