TROAS V. BARNETT, Plaintiff-Appellant,
DAVID NORMAN; A. CASTRO; TRACY JACKSON; A. FOUCH; J. PRUDHOMME; D. FULKS; JASON BARBA; K. CURTISS; MICHAEL PALLARES; K. LENNON; MARTIN GAMBOA; ANGEL DURAN; DIMAS MANUEL TORRES BARRAZA; MANUEL TORRES, Defendants-Appellees
Argued and Submitted, San Francisco, California March
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:05-cv-01022-BAM. Barbara McAuliffe, Magistrate Judge, Presiding.
The panel reversed the district court's judgment and remanded for a new trial in an action brought by state prisoner Troas Barnett pursuant to 42 U.S.C. § 1983, alleging excessive force by prison guards.
Barnett asserted that the district court abused its discretion by permitting three prisoner-witnesses to refuse to answer his questions because, according to the prisoner-witnesses, they had " nothing to add to this matter," chose " not to be a party to" the trial, or were simply unwilling to testify. The panel held that the district court abused its discretion by disclaiming any authority to compel the prisoner-witnesses to answer Barnett's questions. The panel held that where a " necessary and material" witness refuses to testify and no constitutional, statutory, or common-law rule bars the testimony, a judge must try to encourage the testimony or at least explain on the record why, in her discretion, she did nothing because, for instance, such efforts would have been futile. In this case, the magistrate judge abused her discretion as a matter of law when she permitted the prisoners to opt out of testifying. The panel further held that given these facts, it could not say that it was " more probable than not" that the jury was unaffected by the error, and therefore the error was not harmless.
Ian Samuel (argued) Jones Day, New York, New York, for Plaintiff-Appellant.
Janine K. Jeffery (argued) Reily & Jeffery, Inc. Northridge, California, for Defendants-Appellees.
Before: Marsha S. Berzon, Jay S. Bybee,
and John B. Owens, Circuit Judges.
OWENS, Circuit Judge:
Prisoner Troas Barnett appeals a jury verdict that rejected his pro se § 1983 claims of excessive force by prison guards. On appeal and now with assistance of counsel, Barnett contends that the trial
court abused its discretion by permitting three prisoner-witnesses to refuse to answer his questions because, according to the prisoner-witnesses, they had " nothing to add to this matter," chose " not to be a party to" the trial, or were simply unwilling to testify.
While there are exceptions to the maxim " the public has a right to every man's evidence," witness abstention is not one of them. The district court abused its discretion by disclaiming any authority to compel the prisoner-witnesses to answer Barnett's questions. We reverse the judgment and remand for a new trial.
A. The Fight and Pretrial Litigation
On November 4, 2003, Barnett and two prison guards fought violently in his cell. Barnett says that the guards attacked him with a flashlight and a baton without provocation and followed up with pepper spray and more baton strikes after his submission. The guards say that Barnett initiated the attack on one guard and the other came to his colleague's aid, and that both guards were injured. The parties agree that Barnett suffered physical injuries.
Barnett sued the two guards under 42 U.S.C. § 1983 for malicious and sadistic use of force in violation of the Eighth Amendment, and a third guard for failing to protect Barnett by timely intervening. The ...