United States District Court, E.D. California
ORDER GRANTING MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES BLAKE, COVINGTON, AND McCOY (Doc. 83)
ANTHONY ISHII, Senior District Judge.
I. Procedural Background
Plaintiff Timothy Howard ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 20, 2011. This action for damages is set for jury trial on April 21, 2015, on Plaintiff's First Amendment retaliation claims against Defendants DeAzevedo, Paz, and Stephens and Plaintiff's Fourteenth Amendment due process claim against Defendant James. On January 12, 2015, Plaintiff filed a timely motion seeking the attendance of incarcerated witnesses Garrod Blake, CDCR #H19751, Salinas Valley State Prison; Marcus Covington, CDCR #V00834, CSP-Corcoran; and Davon McCoy, CDCR #H67575, CSP-Sacramento. (Doc. 77, Second Sched. Order.) Defendants DeAzevedo, Paz, Stephens, and James ("Defendants") jointly filed a timely opposition on March 10, 2015. (Id. )
A. Legal Standard
As set forth in the second scheduling order, an incarcerated witness who agrees to attend trial voluntarily to give testimony cannot come to court unless the Court orders the warden or other custodian to permit the witness to be transported to court, and the Court will not issue such an order unless it is satisfied that the prospective witness has actual knowledge of relevant facts.
In addition, in determining whether to issue a writ of habeas corpus ad testificandum directing the production of an inmate witness for trial, the district court must consider the following factors: (1) whether the prisoner's presence will substantially further the resolution of the case; (2) security risks presented by the prisoner's presence; (3) the expense of the prisoner's transportation and safekeeping; and (4) whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983) (citing Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977)); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994).
B. Willingness to Testify Voluntarily
Defendants argue that Plaintiff's conclusory assertion regarding his inmate witnesses' willingness to testify does not suffice to demonstrate that they still consent and are willing to testify, given that they provided declarations in 2010 and that attendance at trial will result in disruption for them due to their transfer for trial. However, any argument that Plaintiff should be penalized for not having more current or specific information is untenable. Inmates' ability to correspond with one another is restricted by prison regulations, and Plaintiff attested that he repeatedly sought permission to communicate with his inmate witnesses, without success. Cal. Code Regs., tit. 15, § 3139(a), (b). (Doc. 83, Motion, Howard Dec., ¶¶3, 4.) Moreover, the Court has the discretion to grant Plaintiff's motion even in the absence of express consent if it finds, as it does in this case, that the witnesses have relevant information and their presence will substantially further resolution of the case. (2nd Sched. Order, n.1, citing Wiggins, 717 F.2d at 468 n.1.)
C. Whether Proposed Testimony Substantially Furthers Resolution of Case
1. Summary of Parties' Positions
Inmate Blake allegedly saw Defendants DeAzevedo, Paz, and Stephens searching cells on March 9, 2010, including Plaintiff's cell. Inmate Covington will allegedly testify that Defendants DeAzevedo, Paz, and Stephens tried to get him to exit his cell on March 9, 2010, so they could take his property, and that Defendants searched Plaintiff's cell. Inmates Covington and McCoy will also allegedly testify that on March 8, 2010, they, along with Plaintiff and other inmates, complained to Sgt. Plunkett and Lt. Childs about second watch staff.
Defendants argue inmate Blake's testimony will not substantially further resolution of the case because he could not have seen inside Plaintiff's cell, given his location, and that Plaintiff fails to indicate that inmates ...