United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
Plaintiff is a state prison inmate proceeding with counsel in a civil rights action alleging that on September 9, 2009, defendant Rosario used excessive force against him while he was handcuffed. The case is set for jury trial on May 5, 2014. Plaintiff's request to have five inmate witnesses transported to court is currently pending before the court.
In the scheduling order issued June 18, 2012, the magistrate judge directed any request for the production of inmate witnesses to include either an affidavit from the proposed witness or from the party attesting to the witness's willingness to testify and to the substance of the proposed testimony. ECF No. 56 at 3-4.
On March 6, 2014, counsel filed a motion to obtain the attendance of five witnesses, supporting it with the declaration of counsel, who averred that his investigator talked to the inmates, who agree to testify. ECF No. 127. Counsel identified inmates Mario Thompson, Frank Thompson, Jr. and Richard Shepard as eyewitnesses to the encounter between Draper and Rosario and said inmates John Mitchell and Michael Haynes allege Rosario used force against them while they were handcuffed. Id.
At the final pretrial conference, counsel for Rosario objected to the request, arguing that the eyewitness testimony would be cumulative to Draper's testimony and the testimony about alleged other acts of force would not be admissible. He also argued that the request did not comply with the scheduling order because counsel had not talked to the witnesses himself.
Counsel for plaintiff argued that the eyewitnesses saw the incident from different angles and so their testimony will not be cumulative.
In his written opposition, Rosario again chides plaintiff for failing to abide by the scheduling order and repeats his arguments about the nature of the testimony. He also argues the expense and danger of transporting the witnesses outweighs the potential benefit of their testimony. ECF No. 135 at 5-8.
In reply, plaintiff provides a declaration from Grant Fine, the investigator who talked to the witnesses, and argues that his need for the witnesses outweighs the expense of transporting them. According to Fine, inmate Shepard, currently housed at the Correctional Training Facility in Soledad, saw Rosario handcuff Draper and then, as they walked past the grill gate of the sally port, slam Draper into the gate and then onto the ground. Rosario pinned Draper down with one knee and slammed Draper's face into the ground several times and then pulled Draper up, twisting Draper's arms. Declaration of Grant Fine, ECF No. 140 ¶¶ 3-4.
Inmate Frank Thompson, currently housed at CSP-Solano, told Fine that he heard a verbal exchange between Rosario and Draper, saw Rosario push Draper into the grill gate face first and then slam him to the ground. Frank Thompson told Fine that Rosario then dropped his weight onto Draper, pinning him with one knee even though Draper had not resisted at al. Id. ¶¶ 11-12.
Inmate Mario Thompson, currently housed at CSP-Solano, told Fine that he saw Rosario fling Draper, who was handcuffed, into the sally port grill, fling Draper to the ground, and pin him with one knee while Draper yelled in pain. Id. ¶¶ 13-14. Mario Thompson said that Rosario had also slammed him into a door frame while he was handcuffed. Id. ¶ 15.
Inmate John Mitchell, currently housed at Deuel Vocational Institution, Tracy, reported to Fine that while he was housed at CSP-Solano, Rosario handcuffed him and then during an escort across the yard, yanked Mitchell to the ground, rolled Mitchell onto his stomach and pinned him with one knee. Mitchell filed a grievance against Rosario. Id. ¶¶ 6-7.
Inmate Michael Haynes, currently housed at CSP-Sacramento, told Fine that when he was housed at CSP-Solano Rosario sprayed Haynes with pepper spray, handcuffed him and then pulled on his ...