The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR THE ATTENDANCE OF INCARCERATED WITNESSES NOT WILLING TO TESTIFY VOLUNTARILY (ECF No. 107)
ORDER GRANTING PLAINTIFF'S MOTION FOR THE ATTENDANCE OF INMATE JESSE DURAN (ECF No. 108) ORDER DENYING PLAINTIFF'S MOTION FOR THE ATTENDANCE OF INMATE JOSE / PEREZ (ECF No. 109)
Plaintiff Keith Zavala 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 second amended complaint, filed May 24, 2010, against Defendants Chris Chrones, D. Smith, S. Kays, S. Chandler, J. Soto, and C. Martin for deliberate indifference to Plaintiff's safety in violation of the Eighth Amendment. (ECF Nos. 18, 19.) This action is currently set for jury trial on February 12, 2013, before the undersigned. (ECF No. 100.) On October 29, 2012, Plaintiff filed three motions for the attendance of incarcerated witnesses. (ECF No. 107, 108, 109.) On November 26, 2012, Defendants filed an opposition to Plaintiff's motion for the attendance of incarcerated witnesses. (ECF No. 111.) Plaintiff filed a reply on December 13, 2012. (ECF No. 119.)
In determining whether to grant Plaintiff's motion for the attendance of inmates 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.*fn1 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 (1995).
III. Motion for the Attendance of Inmate Witnesses Who Do Not Agree to Testify Voluntarily Plaintiff requests the attendance of inmates Manuel Perez, CDC No. J45724, Artemio
Gomez, CDC No. T48443, and Arthur Guzman, CDC No. C41587, who he has not communicated with. Plaintiff filed a complaint with prison officials on August 14, 2007, accusing Defendant Martin of willfully and deliberately communicating and fabricating stories and confidential information to the general population to have Plaintiff killed or mortally wounded. Plaintiff was assaulted on September 15, 2007. (Motion to Dismiss 9, ECF No. 76-2.)
Plaintiff claims that these three witnesses were identified in the Appeal Inquiry Report dated February 17, 2009, as having directly participated in the assault on Plaintiff or as having provided information that led to the assault on Plaintiff. (Motion for the Attendance of Incarcerated Witnesses Not Willing to Testify Voluntarily 2,*fn2 ECF No. 107.) Defendants oppose the motion on the grounds that the inmates are all current or former gang members and will either be in danger themselves or be a danger to others if they are transported for trial. (Defendants' Opposition to Plaintiff's Witnesses 1-3, ECF No. 111.)
In his reply to Defendants' opposition, Plaintiff requests that the Court take judicial notice that Defendants have asserted that Plaintiff was not in danger upon being released to the yard, however now are asserting that the witness are dangerous and pose a risk if transported to court. (Plaintiff's Response to Defendants' Opposition of Incarcerated Witnesses 1-2, ECF No. 119.) "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Plaintiff's request that the Court take judicial notice is not a fact of which the accuracy cannot reasonably be questioned and is denied.
Since the issue here is whether Defendants were aware that Plaintiff was in danger of being assaulted and failed to act, only witness testimony regarding information provided to prison officials prior to the attack or that support Plaintiff's theory that Defendant Martin informed gang members that Plaintiff was a snitch would be relevant to support Plaintiff's claims.
Inmate Manuel Perez is housed at California State Prison, Los Angles County in Lancaster. Ordering his presence at trial will require him to be moved to a facility closer to the courthouse. Based upon the information gleaned from the Appeal Inquiry Report, Inmate Perez was an active gang member and had overall authority of the Mexican Mafia ("EME") on Facility B around the time of the incident at issue here. Defendants contend that Inmate Perez disassociated from the EME within months after this incident and is currently assigned to a Sensitive Needs Yard. Inmate Perez is on an EME list of inmates to kill if the opportunity presents itself. If brought to Court Inmate Perez would have enemies present. (ECF No. 111 at 2.)
Plaintiff contends that Inmate Perez has disassociated himself from the prison gang and, therefore, Defendants predictions of nefarious intent is highly speculative. (ECF No. 119 at 4.) The Court notes that this action is proceeding on Plaintiff's claim that he was stabbed twenty two times after being placed on the EME hit list and the security issues alleged here are not taken lightly by the Court. (Compl. 2, ECF No. 1.) Due to his dropping out of the EME, Inmate Perez has been placed on an EME hit list, and he will be in danger should he be transported for trial. Transporting Inmate Perez ...