ORDER DENYING PLAINTIFF'S MOTION FOR ATTENDANCE OF INCARCERATED WITNESS AT TRIAL (Doc. 66.)
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Whittier Buchanan, a state prisoner proceeding pro se and in forma pauperis. Plaintiff is presently incarcerated at Kern Valley State Prison ("KVSP") in Delano, California. The events at issue in this case allegedly occurred at Pleasant Valley State Prison ("PVSP") when Plaintiff was incarcerated there. The case now proceeds against defendant Correctional Officer ("C/O") A. Santos, on Plaintiff's claims for excessive force and inadequate medical care in violation of the Eighth Amendment. This case is scheduled for jury trial to commence on September 25, 2012 at 8:30 a.m. before District Judge Anthony W. Ishii.
On June 7, 2012, Plaintiff filed a motion for the attendance of incarcerated witnesses at trial. (Doc. 66.) On July 10, 2012, Defendant filed an opposition to the motion. (Doc. 70.) Plaintiff did not file a reply. Plaintiff's motion is now before the Court.
II. MOTION FOR ATTENDANCE OF INMATE WITNESS
In the Court's Second Scheduling Order of May 2, 2012, Plaintiff was advised that before the Court will issue an order to transport an incarcerated witness to trial, Plaintiff must file a motion stating the name, address, and prison identification number of such witness, and submit a declaration showing that the witness is willing to testify and has actual knowledge of relevant facts. (Doc. 58 at 2-3.) "The willingness of the prospective witness can be shown in one of two ways: (1) the party himself can swear by declaration under penalty of perjury that the prospective witness has informed the party that he or she is willing to testify voluntarily without being subpoenaed, in which declaration the party must state when and where the prospective witness informed the party of this willingness; or (2) the party can serve and file a declaration, signed under penalty of perjury by the prospective witness, in which the witness states that he or she is willing to testify without being subpoenaed." (Id. at 3:1-7.) "The prospective witness's actual knowledge of relevant facts can be shown in one of two ways: (1) if the party has actual firsthand knowledge that the prospective witness was an eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in plaintiff's cell and, at the time, plaintiff saw that a cellmate was present and observed the incident, plaintiff may swear to the cellmate's ability to testify), the party himself can swear by declaration under penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a declaration signed under penalty of perjury by the prospective witness in which the witness describes the relevant facts to which the prospective witness was an eye- or ear-witness. Whether the declaration is made by the party or by the prospective witness, it must be specific about the incident, when and where it occurred, who was present, and how the prospective witness happened to be in a position to see or to hear what occurred at the time it occurred." (Id. at 3:8-18.)
Plaintiff requests the attendance at trial of five inmate witnesses who are presently incarcerated at KVSP: (1) Michael A. Miller, #T-27370, (2) T. Sousa, #T-85135, (3) C. Lee, #D-42556, (4) W. Nible, #P-45257, and (5) Cato, #H35663. Plaintiff declares under penalty of perjury that each of the prospective witnesses informed him in 2011 and/or 2012, on the C-Yard at KVSP, that they are willing to testify without being subpoenaed. (Buchanan Declaration, Doc. 66 at 2:5-10.) Plaintiff also asserts that each of the five prospective witnesses was previously housed at PVSP, before or after Plaintiff's arrival there, and heard about how Plaintiff was assaulted by Defendant C/O Santos and lost his hearing as a result of the assault. (Id. at 2:11-16.)
In opposition, Defendant argues that each of the prospective incarcerated witnesses should be precluded from testifying at trial because their testimony is based upon biased, irrelevant, hearsay-based and innuendo-driven information which will not aid the trier of fact in reaching a fair resolution of the parties' dispute.
(1) Michael A. Miller, #T-27370
Plaintiff declares that Miller was present when Plaintiff began losing his hearing and assisted him in legal matters, after learning from Plaintiff about the assault. (Id. at 2:17-19.)
Defendant argues that Plaintiff has not substantiated that Miller has first-hand knowledge of the incidents at issue in this action; that Miller's alleged assistance with Plaintiff's legal matters is irrelevant; and that Miller's' prospective testimony is substantially outweighed by the danger of undue prejudice. Fed. R. Evid. 403, 611(a); U.S. v. Layton, 767 F.2d 549, 551-56 (9th Cir. 1985).
Plaintiff declares that Sousa was at PVSP when Plaintiff lost his hearing after being assaulted by Defendant C/O Santos. (Buchanan Declaration at 2:28-3:3.)
Defendant argues that inmate Sousa's testimony is based on unspecified knowledge and second-hand knowledge as gleaned from listening to other officers' conversations; lacks a proper foundation establishing Sousa's personal knowledge of the specific incident alleged in Plaintiff's complaint, Fed. R. Evid. 602; and is substantially outweighed ...