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Gary H. Brush v. J. Woodford

June 13, 2011

GARY H. BRUSH,
PLAINTIFF,
v.
J. WOODFORD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR THE ATTENDANCE OF INCARCERATED WITNESSES (ECF No. 129) / FIFTEEN DAY DEADLINE

I. Procedural History

Plaintiff Gary H. Brush ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter is set for jury trial on August 29, 2011. Plaintiff filed a motion for the attendance of incarcerated witnesses on May 12, 2011.*fn1 (ECF No. 129.) Defendants filed an opposition on June 6, 2011. (ECF No. 130.)

II. Motion for Attendance of Incarcerated Witnesses

Plaintiff seeks the attendance of seventeen incarcerated witnesses. Defendants oppose Plaintiff's motion on the ground that Plaintiff's witnesses would offer needlessly duplicative testimony. The cost of having each inmate transported would be unduly burdensome and expensive and having this many inmates at trial would pose a security risk. Defendants argue that inmate Valfanua can testify to three of the five incidents alleged, which eliminates the need to transport, house, and supervise seven of the inmates he requests. Therefore, Defendants request the Court to grant the request for inmate Valfanua to testify and deny the request for inmates Villiers, Tobey, Wellwood, Reed, Umanfor, Cagadas, and Abeyta. Additionally, Plaintiff requests four inmates, Bauerer, Noble, Morales, and Samano, to testify regarding one incident and two inmates, Serrano and Washington, to testify about another incident. Defendants request that Plaintiff be limited to one inmate witness for each incident. Finally, Plaintiff seeks the attendance of inmate Exmundo, whose testimony is irrelevant, and inmate Weaver who has not agreed to voluntarily testify and these requests should be denied.

A. Legal Standard

The uncertainty regarding whether or not the proposed witnesses are willing to testify voluntarily does not preclude the Court from ordering their transportation. Rather, in determining whether to grant Plaintiff's motion for the attendance of his proposed witnesses, factors to be taken into consideration include (1) whether the inmate's presence will substantially further the resolution of the case, (2) the security risks presented by the inmate's presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed until the inmate is released without prejudice to the cause asserted. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience and expense of transporting inmate witness outweighed any benefit he could provide where the importance of the witness's testimony could not be determined), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995).

B. Discussion

This action is proceeding on Plaintiff's first amended complaint against Defendant Harper for refusing to provide Plaintiff with his pain medication on August 11, 2005, August 19, 2005, and September 1, 2005; Defendant Lee for failing to summon medical attention after Plaintiff fell down; Defendants Lee and Jasso for refusing to give him medication on December 26, 2005; Defendants King and Cattallano for taking away Plaintiff's wheelchair on July 4, 2006; Defendants Rangel, Cano, Gonzales, and Green for excessive force on September 14, 2006; and Defendants Harper, Cattallano, Rangel, Cano, Gonzalez, and Greene for retaliation.*fn2 Plaintiff asserts that he has declarations from the witnesses, however, he has not provided the declarations, but briefly states the testimony of each witness.

The witnesses will be considered in the context of the event that Plaintiff alleges the witness has knowledge. The Court will use its discretion and limit Plaintiff to two witnesses per claim. See Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (trial courts have wide discretion to limit the presentation of cumulative evidence); Cummings v. Adams, No. CV F 03 5294 DLB, 2006 WL 449095, *3 (E.D.Cal. Feb. 12, 2006) (proposed inmate witnesses limited to three of six due to cumulativeness). The motion for the attendance of the witness will be granted or denied for the specific incidents alleged. Granting Plaintiff's motion for the attendance of the witness will allow the witness to testify only to the events for which his attendance has been granted.

1. Defendant Harper's refusal to provide Plaintiff with his pain medication on August 19 and September 1, 2005 Plaintiff requests the attendance of inmates E. Baurer, V-01219; J. Noble, K-12864; V. Morales, D30561; and M. Samano, K-59319, to testify that Defendant Harper did not provide Plaintiff with his medication.

Inmate Baurer was Plaintiff's cellmate and would testify that he heard Plaintiff request medication from Defendant Harper and Defendant Harper refused to give Plaintiff his pain medication. Inmate Noble was Plaintiff's neighbor and personally saw and heard Defendant Harper refuse to give Plaintiff his pain medication. The motion fails to establish when these observations occurred.

Inmates V. Morales, D-30561, and M. Samano, K-59319, signed a group declaration that Defendant Harper passed out medications in the building. There is no evidence that these two inmates have any personal knowledge of Plaintiff being denied medication on August 19 or September 1, 2005. While Plaintiff's motion states that on numerous occasions he was denied medication, this action is proceeding only on the claims found cognizable in the screening order. The information provided by Plaintiff fails to establish that any of the requested witnesses have personal knowledge of the two incidents alleged in his complaint. Because Plaintiff has failed to establish that the requested inmates possess information relevant to the incidents at issue here, Plaintiff's motion for the attendance of Baurer, Noble, Morales, and Samano is denied.

2. Defendant Lee's failure to summon medical attention after Plaintiff fell down Plaintiff requests the attendance of inmates M. Valfanua, J-37350, and Weaver, E-74285, to testify that Defendant Lee did not respond to his call of man down and left. Inmate Weaver has not agreed to testify voluntarily. Plaintiff states that inmate Weaver was his cellmate during several of the incidents alleged in this action, including this incident. Inmate Weaver is afraid to testify because he has been subject to harsh treatment in the past when he testified against prison officials. Additionally, inmate Weaver can easily be swayed to change his testimony when slight pressure is applied. Inmate Weaver is currently housed at Pleasant Valley State Prison. Since inmate Weaver has not volunteered to testify and Plaintiff asserts that his testimony will not be reliable as he is easily swayed, the Court finds the ...


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