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Lopez v. Cate

United States District Court, E.D. California

July 20, 2016

ANDREW R. LOPEZ, Plaintiff,
v.
MATTHEW CATE, et al., Defendants.

          ORDER GRANTING AND DENYING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES AT EVIDENTIARY HEARING (DOC. 172)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff, Andrew R. Lopez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 10, 2010. Plaintiff is currently proceeding on the First Amended Complaint (Doc. 21), filed on March 23, 2012, against Defendants Garcia, Zamora, Espinosa, Jackson, Drew, Olmedo, Munoz, Fields, White, Rousseau, Martinez, Beer, Gray, Beard, and Gipson (“Defendants”) for violating Plaintiff’s federal constitutional rights. Plaintiff’s claims arise out of his conditions of confinement at California State Prison, Corcoran (“CSP-Cor”) in Corcoran, California in 2008 and 2009.

         Defendants’ motion for summary judgment for failure to exhaust (“MSJ”) did not resolve Plaintiff’s First Amendment retaliation claims against Defendants Garcia and Beer arising out of incidents which allegedly occurred on July 22, 2009, July 24, 2009, and September 30, 2009. 42 U.S.C. § 1997e(a); Fed.R.Civ.P. 56(a). With respect to those claims, the Court determined that there are disputed factual issues which could not be resolved absent an evidentiary hearing. Williams v. Paramo, 775 F.3d 1182, 1191-92 (9th Cir. 2015); Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (en banc).

         Thus, an evidentiary hearing has been scheduled for August 23, 2016, (“the Evidentiary Hearing”). (Docs. 170, 171.)[1] The order setting the hearing allowed Plaintiff to file a motion for attendance of incarcerated witnesses on or before May 27, 2016. (Doc. 170.) On May 25, 2016, Plaintiff filed a motion requesting, in addition to himself, the attendance of two incarcerated witnesses (Jose Avina, IM #J-86625 and Kenneth Oliver, IM #K-54606). (Doc. 172.) Defendants filed an opposition on or before the June 27, 2016, due date. (Docs. 170, 173.) Plaintiff filed his reply on July 14, 2016. (Doc. 174.) The motion is deemed submitted.

         To the extent Plaintiff’s motion seeks his own attendance at the Evidentiary Hearing, it is summarily GRANTED. However, to the extent his motion seeks the attendance of IM Avina and IM Oliver, it is DENIED because he fails to show that they have actual knowledge of relevant facts.

         ANALYSIS

         The only issues for resolution at the Evidentiary Hearing are whether Plaintiff exhausted available administrative remedies on his First Amendment retaliation claims against Defendants Garcia and Beer on incidents which allegedly occurred on July 22, 2009, July 24, 2009, and September 30, 2009. The relevant issues are: what inmate appeals process was generally available to inmates in 2009, and whether it was rendered unavailable to Plaintiff. The Findings and Recommendation, which addressed Defendants’ MSJ (“the F&R on MSJ”), found that Plaintiff’s evidence raised factual disputes to necessitate the Evidentiary Hearing. (Doc. 137, F&R on MSJ, pp. 16-19.)

         A. Legal Standards[2]

         Generally, in determining whether to grant motions for the attendance of incarcerated witnesses, factors for consideration include (1) whether the inmate's presence will substantially further 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). Plaintiff may only call witnesses who are able to provide relevant testimony on the factual disputes identified in the F&R on MSJ. Fed.R.Evid. 401, 402, 602, 701, 702.

         Plaintiff must show that the anticipated testimony of each inmate he wishes to call as a witness will substantially further resolution of the issue. As stated in the scheduling order for the Evidentiary Hearing, this requires a showing the inmate is willing to testify and has actual knowledge of relevant facts. (Doc. 170, pp. 2-3.) This can be shown via declaration, either by Plaintiff or the prospective witness, that the prospective witness is willing to testify, which is “specific about the incident, when and where it occurred, who was present, and how the prospective witness happened to be in a position to see or hear what occurred at the time it occurred.” (Id., at p. 3.)

         1. Summary of CDCR’s Generally Available Inmate Appeals Process

         As stated in the F&R on MSJ, the California Department of Corrections and Rehabilitation (“CDCR”) has a generally available administrative grievance system for prisoners to appeal any departmental decision, action, condition, or policy having an adverse effect on prisoners’ welfare, Cal. Code Regs., tit. 15, § 3084.1, and compliance with section 1997e(a) requires California state prisoners to use that process to exhaust their claims, Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). Title 15 regulations which govern CDCR’s inmate appeals process were amended in 2011, but Plaintiff’s claims arise from events which occurred in 2008 and 2009. Thus, the citations to Title 15 set forth below are the pre-amendment regulations in effect on the relevant dates.

         In 2009, the appeals process was initiated by submitting a CDC Form 602 describing “the problem and action requested.” Cal. Code Regs., tit. 15, § 3084.2(a) (West 2009). This form was to be submitted “within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision.” Tit. 15, § 3084.6(c). Up to four levels of appeal could be involved -- an informal level, a first ...


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