Puckett v. Brandon

          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 ...