United States District Court, E.D. California
GEORGE H. ROBINSON, Plaintiff,
D. G. ADAMS, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES (ECF
ANTHONY W. ISHII, Senior District Judge.
Plaintiff George H. Robinson ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants David, Miranda, Melo, Garcia, Mendoza and Masiel for use of excessive force in violation of the Eighth Amendment; against Defendants Adams and Ruiz for failure to protect in violation of the Eights Amendment; and against Defendants Martinez, David, Miranda and Garcia for assault and battery in violation of state law. This matter is set for jury trial on March 10, 2015.
On January 5, 2015, Plaintiff moved for the attendance of the following incarcerated witnesses: (1) Richard A. Holcomb (T-41584, CSP-Corcoran); (2) Pierre Davey (D-20936, CSP-Corcoran); (3) Lara (D-98607, CSP-Corcoran); (4) Lamonte E. Rencher (D-97733, CSP-Corcoran); (5) Barry Lamon (E-08345, CSP-Corcoran); (6) Ivory C. Taylor (C-05467, CSP-Corcoran); (7) S. Mitchell (T-14082, CSP-Corcoran); (8) Raul Garcia, Jr. (T-88303, CSP-Corcoran); (9) Hugo Vergara (P-18218, CSP-Corcoran); (10) Larry Alexander (K-61435, CSP-Sacramento); (11) K. Malbrue (P-89050, CSP-Corcoran); (12) George E. Jacobs (CSP-Corcoran); (13) Eugene Hamilton (CSP-Corcoran); and (14) Monte L. Haney (V-72062, CSP-Sacramento). Plaintiff also requested that these witnesses be provided with the option to testify via two-way electronic audio/video communication. (ECF No. 231.) Defendants opposed the motion on January 20, 2015.
On January 26, 2015, the Court held a telephonic trial confirmation hearing and addressed Plaintiff's pending motion for incarcerated witnesses and the request for testimony via two-way electronic audio/video communication. The motion is deemed submitted. Local Rule 230(l).
I. 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).
In support of his motion, Plaintiff submits the declaration of Inmate Holcomb. Inmate Holcomb declares that he was assaulted by Defendants David and Miranda on October 2, 2006, and that the persons involved falsified a rules violation report. (ECF No. 231, Ex. 1.) Plaintiff declares that Inmate Holcomb was housed in the same section and saw and heard things not mentioned in his declaration that will be relevant at trial.
Defendants counter that nowhere in Inmate Holcomb's declaration is a claim of actual knowledge regarding the events at issue in this case. Defendants contend that Inmate Holcomb's testimony will focus on the alleged bad acts of Defendants David and Miranda and should be excluded as inadmissible evidence of propensity under Federal Rule of Evidence 404.
Here, Plaintiff fails to demonstrate that Inmate Holcomb has any knowledge of the events at issue in this action. Plaintiff's generalized declaration does not establish that Inmate Holcomb was a percipient witness. Rather, it appears that Inmate Holcomb intends to testify regarding a prior bad act by Defendants David and Miranda. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. Fed.R.Evid. 404(b)(1). However, this evidence may be admissible for another purpose, such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2).
"The Ninth Circuit has held that evidence may be admitted pursuant to 404(b) if (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.'" United States v. Cherer, 513 F.3d 1150, 1157 (9th Cir. 2008) (quoting in part United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002)). If evidence satisfies Rule 404(b), "the court must then decide whether the probative value is substantially outweighed by the prejudicial impact under Rule 403." Id. The proponent of the disputed evidence bears the burden of demonstrating its admissibility under the foregoing test. United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir. 1998).
Plaintiff makes no showing that the evidence he intends to offer tends to prove a material point or is sufficient to support a finding that Defendants committed the acts alleged by Inmate Holcomb. The inmate's declaration is not sufficient to demonstrate that the asserted act occurred, and his testimony likely would result in a mini-trial. Plaintiff therefore has failed to meet his burden of proof pursuant to Rule 404(b). Additionally, the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to Defendants, confusion of the issues, and misleading the jury. Fed.R.Evid. 403. As such, Inmate Holcomb's testimony will not substantially further the resolution of this case. Wiggins, 717 F.2d at 468 n.1.
In support of his motion, Plaintiff submits the declaration of Inmate Davey. Inmate Davey declares that on January 22, 2007, he witnessed Defendants David and Miranda take Plaintiff out of his cell and heard them tell Plaintiff that they were going to take everything out of his cell. Shortly after they left the section, Inmate Davey heard Plaintiff yell, "Stop beating me, " and "Help I'm Being Beat." Everything was taken out of Plaintiff's cell. Plaintiff was carried back to his cell on a stretcher and Inmate Davey could see that Plaintiff's face appeared to be swollen. Plaintiff also appeared to be dazed and had to be lifted and placed in his cell. Plaintiff told Inmate Davey and other inmates that officers beat him and he was not feeling okay. Inmate Davey heard Plaintiff fall. Inmate Davey and other inmates called out to Plaintiff to ask if he was okay. When they did not get a response, the inmates called "Man Down" to get Plaintiff some medical attention. Defendant Martinez responded to Plaintiff's cell and then pepper sprayed Plaintiff with two cans of spray. The pepper spray caused Inmate Davey and others to cough and choke. Plaintiff did not have a mattress, blanket or change of clothing for weeks. (ECF No. 231, Ex. 2.)
Defendants did not object to the attendance of Inmate Davey at trial. As it appears he has relevant evidence that will substantially further the resolution of this action, Plaintiff's motion for the ...