United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES (ECF No. 75.)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Warner Livingston ("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 proceeds on Plaintiff's complaint, filed June 25, 2010, against Defendants Sanchez and Ayon for excessive force in violation of the Eighth Amendment. A jury trial is set for August 12, 2014.
On June 2, 2014, Plaintiff moved for the attendance of the following incarcerated witnesses: (1) Inmate Roundtre (C-75317, CSATF); (2) Inmate Smith (D-93516, CSATF); (3) Inmate Washington (P-56994, CSATF); (4) Inmate Lozo (P-08971, CSATF); (5) Inmate Peak (T-49836, CSATF); (6) Inmate Nuth (P-38386, CSATF); (7) Inmate Ponce (F-09410, CSATF); (8) Inmate Alonzo (J-68767, CSATF); and (9) Inmate Almaraz (V-34222, CSATF). Defendants opposed the motion on June 12, 2014. The Court heard brief argument regarding the motion in the course of the Telephonic Trial Confirmation Hearing held on June 26, 2014. The motion is deemed submitted. Local Rule 230(l).
II. Motion for the Attendance of Incarcerated Witnesses
A. Legal Standard
In determining whether to grant Plaintiff's motion for the attendance of incarcerated witnesses, the Court considers the following factors: (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. 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).
a. Inmate Roundtre (C-75317, CSATF)
Plaintiff was housed in cell 104. Plaintiff declares under penalty of perjury that Inmate
Roundtre was housed in cell 101, was at his cell door awaiting his morning meal and heard Plaintiff's conversation with Defendants about the lids not being on the food trays. If called to testify, Inmate Roundtre would inform the jury that Defendants served the morning meal trays without lids on them. Inmate Roundtre informed Plaintiff that he would testify about what he heard and witnessed if called as a witness.
In his moving papers, Plaintiff also claims that Inmate Roundtre could attest to the fact that Defendants refused to allow Plaintiff to speak to the sergeant, that Defendants threatened to spray Plaintiff with their pepper spray and that he saw Defendants drag Plaintiff out of his cell by his legs. While Plaintiff was on the ground in front of his cell, Inmate Roundtre yelled out and told Plaintiff to call him as a witness. Inmate Roundtre made clear that he would testify regarding the incident.
Defendants oppose the motion to call Inmate Roundtre, arguing that Plaintiff's declaration lacks a statement under penalty of perjury that Inmate Roundtre is willing to testify. Defendants also contend that the declaration fails to identify specifically what Inmate Roundtre heard or saw. Defendants further argue that Plaintiff failed to disclose this witness in discovery, which also calls into question the veracity of Plaintiff's statement that this witness is willing to testify.
Defendants objections do not appear warranted. Although not all information regarding Inmate Roundtre is contained in Plaintiff's sworn declaration, there is sufficient information in Plaintiff's moving papers to ascertain the general nature of Inmate Roundtre's anticipated testimony. His testimony regarding events leading up to the alleged assault, along with what he may have heard and seen after the alleged assault, is relevant to Plaintiff's claims and may substantially further the resolution of this case. Fed.R.Evid. 401 (evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence in determining the action); Wiggins , 717 F.2d at 468 n.1. That Plaintiff failed to disclose Inmate Roundtre in response to interrogatories does not mandate his exclusion. Fed.R.Civ.P. 37(c); Cambridge Elec. Corp. v. MGA ...