United States District Court, E.D. California
DURRELL A. PUCKETT, Plaintiff,
v.
K. BRANDON, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTIONS FOR ATTENDANCE OF INCARCERATED
WITNESSES [ECF NOS. 64, 69]
Plaintiff
Durrell A. Puckett is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. Both parties have consented to United States magistrate
judge jurisdiction. (ECF No. 46.)
Currently
before the Court is Plaintiff’s motion for attendance
of incarcerated witnesses to be present at jury trial. (ECF
Nos. 64, 69.)
This
action is proceeding on Plaintiff’s claim of
retaliation in violation of the First Amendment against
Defendant K. Brandon, namely, failure to provide meals for
several days in June 2013 and confiscation of his property
from his cell on June 27, 2013. The case is set for jury
trial on October 11, 2016.
I.
DISCUSSION
The
uncertainty regarding whether or not the proposed witnesses
are willing to testify voluntarily does not preclude this
Court from ordering their transportation. Rather, in
determining whether to grant Plaintiff’s motion for the
attendance of his proposed witnesses, factors to be taken
into consideration include (1) whether the inmate’s
presence will substantially further the resolution of the
case, (2) the security risks presented by the inmate’s
presence, and (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
requests the attendance of following five inmate-witnesses:
(1) Kelvin Martinez, CDCR # AC8551; (2) Clarence L. Roberson,
CDCR # K-37334; (3) Singletary, CDCR # H-13722; (4) Aaron
Lawrence, CDCR K-15658; and (5) Anthony Underdue, CDCR #
AH5378. Defendants object to all of the inmate witnesses,
with the exception of Anthony Underdue.
A.
Inmate Kelvin Martinez
Plaintiff
requests to call inmate witness Kelvin Martinez as a rebuttal
witness to impeach Defendant’s witness Childress.
In
opposition, Defendant submits the declaration of M. Kimbrell,
Litigation Coordinator at California State Prison-Corcoran
(Corcoran). Kimbrell declares that CDCR records demonstrate
that, on June 17, 2013, Plaintiff was housed at Corcoran in
the Administrative Segregation Unit (ASU) in housing unit
03A03, cell 141. His cell mate at that time was inmate
Underdue. (Kimbrell Decl., Ex. A at ¶ 2, ECF No. 71.)
CDCR records demonstrate that, on June 17, 2013, inmate
Martinez (AC8551) was housed at Pelican Bay State Prison
(PBSP) and did not arrive at Corcoran until June 27, 2013,
when he was housed at the Acute Care Hospital (ACH). After
leaving the ACH on June 29, 2013, Martinez was housed in the
Security Housing Unit (SHU) in housing unit 4B3L, which is a
separate yard from where Plaintiff was housed. (Kimbrell
Decl. Attach. 1.)
In
response, Plaintiff submits that inmate Martinez may not have
observed the incident in question; however, Martinez was
present when Defendant’s alleged witness, Childress
made comments to testify falsely.
Plaintiff’s
request for the attendance of inmate Martinez shall be
denied, without prejudice, as there is not sufficient
information before the Court that Martinez has relevant
admissible evidence to present to the jury that would further
the resolution of this case. Plaintiff’s statement
concerning inmate Martinez is too vague and is insufficient
to show that this witness has actual firsthand knowledge of
the relevant facts of the incident. In addition, there is no
evidence before the Court that witness Childress will be
called to testify. Accordingly, Plaintiff’s motion for
the attendance of inmate Martinez is denied, without
prejudice.
B.
Inmate Clarence L. Roberson
Plaintiff
requests to call inmate witness Clarence L. Roberson as an
impartial expert witness. Plaintiff contends inmate Roberson
has full knowledge of the mental health care program.
Kimbrell
declares that CDCR records demonstrate that, on June 17,
2013, inmate Roberson (K-37334) also was housed in the SHU at
Corcoran, in housing 4A3R, which is a separate yard from
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