United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR ATTENDANCE
OF INCARCERATED WITNESSES (ECF No. 52)
Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE
Michael Steven King is appearing pro se and in
forma pauperis in this civil rights action pursuant to
42 U.S.C. § 1983. This case is set for a jury trial on
Plaintiff's claims against Defendants Deathriage,
Martinez, and Briones for excessive force in violation of the
before the Court is Plaintiff's motion for the attendance
of incarcerated witnesses who agree to testify voluntarily,
filed January 9, 2017. (ECF No. 52.) Plaintiff seeks the
attendance of (1) Frizzell Bell (CDCR # V-98376, Kern Valley
State Prison); (2) Damion Johnson (CDCR #V-82917, Folsom
State Prison); and (3) Horatio Jones (CDCR# K-63200,
CSP-Lancaster). In support, he attaches declarations signed
by each witness stating that they agree to testify as
witnesses in this matter. (Id. at 4-6.)
oppose the motion, arguing that although the inmates'
declarations state that they are willing to testify, they do
not discuss any details about what they witnessed, or how
they could see or hear the incident in question. (ECF No.
parties' arguments were also heard on this matter at the
telephonic trial confirmation hearing held on March 23, 2017.
determining whether to grant Plaintiff's motions for the
attendance of incarcerated witnesses, the Court considers the
following factors: (1) whether the inmate's presence will
substantially further the 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).
the Court cannot determine that any of these inmates'
presence will substantially further the resolution of this
case. None of the declarations filed by Plaintiff give any
information showing that the prospective inmate witnesses
have actual knowledge of the relevant facts in this matter.
Inmate Bell's declaration merely states, in the
third-person, that “Mr. King, as witnessed by Mr. Bell,
was a recipient of assault, abuse and unnecessary
force” at Pleasant Valley State Prison. (ECF No. 52, p.
4.) Inmate Johnson's and inmate Jones's declarations,
respectively, each only state that they are willing to
testify about “the events” or “the
incident” that occurred. (Id at 5, 6.) From
these vague declarations, the Court cannot find that any of
these prospective witnesses have actual, first-hand knowledge
of the events at issue, as either eye or ear-witnesses to the
relevant facts. Nor can the Court evaluate whether the
importance of these witnesses' testimony outweighs the
security risks and expenses inherent in transporting inmate
witnesses from various institutions to the courthouse for the
trial in this matter.
was provided the standards for obtaining the attendance of
incarcerated witnesses who agree to testify voluntarily in
the September 26, 2016 Second Scheduling Order in this
matter, including the need for any supporting declarations to
provide specific details of the events witnessed so that the
Court could make the above-described determinations.
Plaintiff has not met his burden here in meeting that
standard for seeking the attendance of these incarcerated
regard to Inmate Bell, Plaintiff directed the Court to
evidence submitted earlier in this case-a December 24, 2013
Rules Violation Report by Correctional Officer M. Mata
regarding an interview of Inmate Bell. Officer Mata writes in
the report that he asked whether Inmate Bell saw correctional
officers jump on Plaintiff “for no reason, ” and
that Inmate Bell responded, “Yes.” (RVR Log. No.
13-FB-03-042, ECF No. 42, p. 9.) The report does not show
that Plaintiff has met his burden here, as it was drafted
several years ago, and contains limited hearsay evidence from
Inmate Bell, without any details of what he witnessed and how
he was able to witness the events. Thus, this report does not
provide sufficient information from the Plaintiff or Inmate
Bell for the Court to determine that Inmate Bell was an eye
or ear-witness to the events at issue, or that the inmate is
now able to testify about those events.
requested a private investigator to assist in his
communications with Inmate Bell, and an order directing the
warden of Plaintiff's institution to allow him to
correspond with Inmate Bell, so that he could obtain further
support for his motion to transport that inmate. For the
reasons discussed at the hearing, the request for a private
investigation is denied. A separate order will issue to the
warden of Ironwood State Prison regarding Plaintiff's
letter to Inmate Bell. Plaintiff is directed that his letter
must be sent post haste, and any response from Inmate Bell
must be submitted to the Court immediately upon receipt, as
the trial in this matter will not be delayed.
Conclusion and Order
these reasons, it is HEREBY ORDERED that Plaintiff's
motion for attendance of incarcerated witness who agree to
testify voluntarily, filed on January ...