The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION AND GRANTING IN PART AND DENYING IN PART P LA IN T IF F ' S M O T IO N FOR THE ATTENDANCE OF INCARCERATED WITNESSES (ECF No. 139, 148, 158)
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 action is proceeding on the first amended complaint, filed June 30, 2008, against Defendants J. Harper, Lee, Jasso, King, and Catalano for deliberate indifference in violation of the Eighth Amendment; and Defendants Rangel, Gonzales, Cano, and N. Greene for excessive force on September 14, 2006, in violation of the Eighth Amendment; and Defendants J. Harper, Rangel, Gonzales, Cano, and N. Greene for retaliation in violation of the First Amendment. A jury trial in this matter is set for November 1, 2011.
On June 13, 2011, an order issued granting in part and denying in part Plaintiff's motion for the attendance of incarcerated witnesses. (ECF No. 133.) The Court limited Plaintiff to two witnesses per incident and Plaintiff was to notify the Court within fifteen days which witnesses he wished to have testify at trial. Plaintiff filed a notice of the witnesses he wished to have brought for trial and a motion for reconsideration of the order granting in part his motion for the attendance of incarcerated witnesses on July 5, 2011. (ECF No. 139.) Defendants filed an opposition on July 18, 2011. (ECF No. 148.) Plaintiff filed a reply on July 12, 2011. (ECF No. 158.)
Initially, Plaintiff has chosen to have Inmates J. Umanzor and A. Serrano testify to the alleged use of excessive force that occurred on September 14, 2011. The Court has previously granted Plaintiff's request for their attendance at trial. Any witness appearing at trial will be allowed to offer relevant testimony to events about which he has personal knowledge to the extent that the testimony is not cumulative or subject to objections by Defendants. Plaintiff requests that the Court reconsider allowing inmates Villiers, Reeder, Wellwood, and Exmundo to testify at trial.*fn1
Plaintiff argues that the Court incorrectly made wrong determinations as to what the witnesses had seen or heard and there are some things that only a specific witness would be able to testify about. Plaintiff requests that the Court allow inmates Villiers, Reeder, Wellwood and Exmundo to testify at trial by video conference to satisfy the security and cost concerns of transporting the inmates. Additionally, Plaintiff makes allegations that witnesses have been "compromised" or "influenced" by Defendants "through intimidations, harassments and gifts or promised [sic] of other benefits." (Motion for Reconsideration 2, ECF No. 139.) Plaintiff submits declarations from inmates Abeyta, Cagadas, Serrano, Reeder, Villiers, Wellwood, and Umanzor. The Court has previously granted Plaintiff's request to have inmates Abeyta, Cagadas, Serrano, and Umanzor transported to testify at trial.
Defendants argue that Plaintiff has not shown that the additional inmates have any relevant, non-duplicative testimony; allowing the inmates to testify by video conference limits the jury's ability to observe the witness' demeanor and assess credibility; video conference equipment is either unavailable or unreliable at the institutions where the inmates are housed; and Plaintiff has not presented new facts or law, or shown that the prior order was based on mistake or clear error. Plaintiff filed a reply on July 12, 2011, arguing that Defendants arguments are frivolous and his motion should be granted.
"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original). Since this action was reassigned to the undersigned after Plaintiff's motion for the attendance of incarcerated witnesses was decided, the Court shall exercise its discretion and reconsider the motion for attendance of inmates Villiers, Reeder, Wellwood, and Exmundo.
While Plaintiff requests that the witnesses be allowed to testify by video to address the security and cost concerns, Defendants object. Federal Rule of Civil Procedure 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 ...