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Filipe Noe Garcia v. Jg Grimm; Sgt Hightower; Rhinelander; Setter; Swiney; J. Macleod

January 23, 2012

FILIPE NOE GARCIA,
PLAINTIFF,
v.
JG GRIMM; SGT HIGHTOWER; RHINELANDER; SETTER; SWINEY; J. MACLEOD, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Petitions for Writ of Habeas Ad Testificandum and Motion for Subpoenas filed by Plaintiff Filipe Noe Garcia (ECF Nos. 190, 219).

I. Petition for Writ of Habeas Ad Testificandum

On April 1, 2011, Plaintiff submitted a Petition for Writs of Habeas Corpus Ad Testificandum (ECF No. 171) for himself, Julio Contreras, Rodney Brooks, Robert Marin, David Cano, Francisco Flores, David Flores, Francisco Gongora, Geraldo Ojito, Michael Colon, Christopher Macits, Ricardo Magana, Robert Gomez, Alberto Hernandez, Juan Torres, Ronnie Monie, and Mark Winston.

On June 21, 2011, the Court issued an Order stating:

The Court finds that testimony by Julio Contreras, Rodney Brooks, Robert Marin, and David Cano, who were each eye-witnesses to the incident, may be relevant to this lawsuit. Plaintiff does not have access to the witnesses. The Court cannot determine on this record whether the value of Julio Contreras, Rodney Brooks, Robert Marin, or David Cano's testimony justifies the expense and security risk associated with transporting the inmate-witness to court from a correctional facility. See Greene v. K.W. Prunty, 938 F. Supp. 637, 639 (S.D. Cal. 1996). The Court orders Defendants to take a telephonic deposition of Julio Contreras, Rodney Brooks, Robert Marin, and David Cano, if they are currently incarcerated. Defendants shall pay the costs associated with the depositions. Plaintiff's Motion for Writ of Habeas Corpus Ad Testificandum is denied with leave to renew after the depositions are completed.

Plaintiff has failed to make even a minimal showing that testimony by inmates Francisco Flores, David Flores, Francisco Gongora, Geraldo Ojito, Michael Colon, Christopher Macits, Ricardo Magana, Robert Gomez, Alberto Hernandez, Juan Torres, Ronnie Monie, and Mark Winston is relevant and necessary in this case. During oral argument, Plaintiff requested leave to submit additional information regarding inmate Geraldo Ojito. Plaintiff may file a motion for writ of habeas corpus ad testificandum regarding inmate Geraldo Ojito by July 5, 2011. Defendants may respond by July 25, 2011. ...

The Motion for Writ of Habeas Corpus Ad Testificandum (ECF No. 171) filed by Plaintiff Filipe Noe Garcia is DENIED. Defendants shall arrange for the telephonic depositions of Julio Contreras, Rodney Brooks, Robert Marin, and David Cano, if they are currently incarcerated, to be completed by no later than August 8, 2011. Defendants shall provide transcripts of the depositions to Plaintiff by September 12, 2011. Plaintiff may file any motion for writ of habeas corpus ad testificandum regarding Julio Contreras, Rodney Brooks, Robert Marin, or David Cano by October 12, 2011. (ECF No. 186 at 4-5).*fn1

On June 27, 2011, Plaintiff filed a Motion for Writ of Habeas Ad Testificandum for Gerlad Ojito. (ECF No. 190 at 6). Plaintiff contends that "Prisoner Geraldo Ojito will testify to what he heard on May 1, 2005 ... starting with when Plaintiff Felipe Garcia was arguing with cell mate David Cano; the arrival of sheriff deputies ... and the exchange of words and what followed...." Id. at 7.

On December 1, 2011, Plaintiff's Petition for Writ of Habeas ad Testificandum was filed. (ECF No. 219).*fn2 Plaintiff seeks an order for the appearance of the following incarcerated witnesses at the bench trial set for January 31, 2012: Geraldo Ojito, Robert Marin, David Cano, Rodney Brooks, Julio Contreras, and Arthur Torres. Plaintiff contends that the witnesses are "housed at different state prisons in California." Id. at 15. Plaintiff contends that "[b]ased on their depositions there is conclusive evidence that the nature and materiality of their testimony is relevant and necessary ...." Id. at 18. Plaintiff contends that "[i]t would be very unfair to require Plaintiff to rely on depositions taken by Defendants' lawyer ...." Id.

On December 29, 2011, Defendants filed an Opposition to the Petition for Writ of Habeas Corpus ad Testificandum (ECF No. 227) and filed the Depositions of Julio Contreras and Rodney Brooks (ECF No. 229). Inmate David Cano refused to testify. Defendants contend that "Garcia and defense counsel questioned Brooks and Contreras thoroughly during their depositions regarding the Defendants' efforts to control [Garcia] after his hands were in the food flap, and whether the amount of force each of the Defendants applied to Garcia thereafter was reasonably necessary to overcome Garcia's resistance." (ECF No. 227 at 4). "Defendants contend the[] admission into evidence [of the deposition transcripts are] sufficient in themselves, with no need for the witnesses to provide cumulative live testimony." Id. at 4-5. Defendant contend that Plaintiff has failed to make any "showing as to how either witness' testimony would differ from or be more effective if offered live in court rather than through the reading of their depositions." Id. at 5.

Defendants assert that inmate Brooks is currently serving a life sentence for second degree murder and assault with a deadly weapon for a drive-by shooing in 1991, as well as a conviction of manufacturing a weapon while in prison. Defendants assert that Brooks "is officially listed as both a Mexican Mafia and Westside 18th Street gang associate." Id. Defendants assert that Brooks is a high level custody inmate and that California Department of Corrections and Rehabilitation regulations require that two correctional officers, including one supervisor, accompany Brooks at all times in which he moves throughout the prison.

Defendants assert that inmate Contreras is currently serving a 16 years-to-life sentence for convictions of robbery, assault with a deadly weapon, battery, and conspiracy. Defendants assert that Contreras "has been officially validated as a Mexican Mafia associate and member of the Old Town National City gang." Id. at 6. Defendants assert that Contreras is a high level custody inmate and that California Department of Corrections and Rehabilitation regulations require that two correctional officers, including one supervisor, accompany Contreras at all times in which he moves throughout the prison.

In ruling on a Motion for Writ of Habeas Corpus Ad Testificandum, the Court must balance the relevance and necessity of the testimony against the security risks involved in having the witnesses transported to the Court to testify during trial. See Greene v. K.W. Prunty, 938 F. Supp. 637, 639 (S.D. Cal. 1996) (holding "[i]n order to grant the writ of habeas corpus ad testificandum the Court must determine not only whether an inmate-witness' testimony is relevant, but also, whether such testimony is necessary. This determination depends ultimately upon whether the probative value of the testimony justifies the expense and security risk associated with transporting an inmate-witness to court from a correctional facility."). "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. "All relevant evidence is admissible, ...


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