United States District Court, E.D. California
ANDREW R. LOPEZ, Plaintiff,
MATTHEW CATE, et al., Defendants.
ORDER ON PLAINTIFF’S MOTION TO RESCHEDULE
EVIDENTIARY HEARING AND ON STIPULATION FOR PLAINTIFF TO
APPEAR AT EVIDENTIARY HEARING VIA VIDEO CONFERENCE (DOCS.
177, 182-2) ORDER VACATING ORDER AND WRIT OF HABEAS CORPUS AD
TESTIFICANDUM (DOC. 175)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
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. This action is currently proceeding on
Plaintiff’s amended complaint, 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, in
Corcoran, California in 2008 and 2009.
motion for summary judgment for failure to exhaust was
resolved with the exception of Plaintiff’s First
Amendment retaliation claims against Defendants Garcia and
Beer arising out of incidents alleged to have 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 requiring 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)
evidentiary hearing was originally scheduled to take place on
October 22, 2015. (Doc. 143.) It has been rescheduled twice
and is currently scheduled to take place on August 23, 2016.
(Docs. 145, 147, 170, 171.)
August 1, 2016, Plaintiff filed a motion to reschedule the
evidentiary hearing. (Doc. 177.) Defendants’ response
included a signed stipulation for Plaintiff to appear at the
evidentiary hearing via video conference and for revocation
of the transportation writ for Plaintiff’s personal
appearance. (Doc. 182-2.)
Plaintiff May Appear Via Video Conference
request that “the Court issue a warning to Plaintiff on
the possible effects his video conference appearance may have
on the Court’s ability to determine issues of
credibility . . . .” (Doc. 182, p. 2.)
Rule of Civil Procedure 43(a) provides that a court may
“permit testimony in open court by contemporaneous
transmission from a different location” for good cause
in compelling circumstances and with appropriate safeguards.
safeguards exist where the opposing party's ability to
conduct cross-examination is not impaired, the witness
testifies under oath in open court, and the witness's
credibility can be assessed adequately. See
Beltran-Tirado v. Immigration and Naturalization
Service, 213 F.3d 1179, 1186 (9th Cir. 2000);
Alderman v. SEC, 104 F.3d 285, 288 n. 4 (9th
Cir.1997); Scott Timber, Inc. v. United States, 93
Fed.Cl. 498, 500 (Fed. Clms. 2010). It is appropriate to
consider the possible effect of a witness's physical
absence from the courtroom on his or her truthfulness.
See Humbert v. O’Malley, 303 F.R.D. 461, 465
(Dist. MD, 2014); Federal Trade Commission v. Swedish
Match North America, Inc., 197 F.R.D. 1, 2 (D.C. 2000);
Scott Timber, 93 Fed.Cl. at 501.
purpose of hearing live testimony is to “enable[ ] the
finder of fact to see the witness's physical reactions to
questions, to assess the witness's demeanor, and to hear
the tone of the witness's voice.” United States
v. Mejia, 69 F.3d 309, 315 (9th Cir.1995). Where the
veracity of witnesses is at issue, the court must make a
credibility determination by listening to the witnesses,
testing their story, and gauging their demeanor. Earp v.
Oronski, 431 F.3d 1158, 1169-1170 (9th Cir.2005).
Finally, “[i]n evaluating credibility, the court should
consider factors such as the opportunity and ability of the
witness to see or hear or know the things testified to; the
witness' memory; the witness' manner while
testifying; the witness' interest in the outcome of the
case and any bias or prejudice; whether other evidence
contradicted the witness' testimony; the reasonableness
of the witness' testimony in light of all the evidence;
and any other factors that bear on believability.”
Henry v. Marshall, No. CIVS940916JKSEFBP, 2010 WL
2179896, at *5 (E.D. Cal. May 27, 2010). Because a witness
testifying by video is observed directly with little, if any,
delay in transmission, video testimony can sufficiently
enable cross-examination and credibility determinations, as
well as preserve the overall integrity of the proceedings.
See Parkhurst v. Belt, 569 F.3d 995, 1003 (8th
Cir.2009); Scott Timber, 93 Fed.Cl. at 501; see
also Swedish Match, 197 F.R.D. at 2 (finding that there
was “no practical difference between live testimony and
contemporaneous video transmission” in proceedings in
as Plaintiff has a duplicate set of the exhibits to be used
during the hearing so that all those involved have access to
and are able to contemporaneously view a document being
discussed, the Court finds it appropriate to allow ...