United States District Court, E.D. California
ORDER REGARDING PLAINTIFF'S MOTION FOR
INCARCERATED WITNESSES [ECF NO. 66]
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.
Avery Hypolite is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
action is proceeding against Defendant Zamora for excessive
force in violation of the Eighth Amendment, and the case is
set for jury trial before the undersigned on May 23, 2017.
before the Court is Plaintiff's motion for incarcerated
witnesses, filed February 8, 2017. Defendant filed an
opposition on March 22, 2017.
uncertainty regarding whether or not the proposed witnesses
are willing to testify voluntarily does not preclude this
Court from ordering their transportation. “Both sides
in a trial have the right to call witnesses, and the power to
compel witness testimony is essential to our system of
justice.” Barnett v. Norman, 782 F.3d 417, 422
(9th Cir. 2015). A judge cannot “allow a witness to
refuse to testify because he would prefer not to answer a
question.” Id. “The public's
interest in full disclosure and the fair administration of
justice overrides concerns that testimony might be
inconvenient, burdensome, or harmful to a witness's
social or economic status.” Id.
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).
requests the attendance of following three inmate-witnesses:
(1) Egnacio Joshua, CDCR #P-07512; (2) Fred Gordon, CDCR
#P-70525; and (3) Jesse Washington, CDCR #D-23593. Plaintiff
states that each witness has agreed to testify voluntarily.
(Mot. at 1, ECF No. 66.)
Inmate Egnacio Joshua
requests the attendance of inmate witness Egnacio Joshua and
submits an unsworn summary of an interview apparently
conducted by a private investigator by the name of Daniel
opposes the request on the ground that Plaintiff has failed
to satisfy the requirements set forth in the Court's
November 4, 2016, scheduling order for securing the
attendance of incarcerated witnesses at trial.
Court agrees with Defendant. Although Plaintiff has submitted
a summary of an interview apparently conducted by a
third-party investigator, there is no declaration by
Plaintiff or inmate Joshua signed under penalty of
perjury, and Plaintiff has not provided a sufficient basis
for failing to do so. As stated in the Court's November
4, 2016, order.
the veracity of the statement is questionable given that the
alleged investigator Daniel Fulks indicated he was appointed
by the Court; however, the Court has not at any time
appointed an investigator in this case. Accordingly,
Plaintiff's motion for attendance of inmate Egnacio
Joshua is denied, without prejudice, to renewal with a
supporting declaration by Plaintiff or inmate Joshua on or
before April 10, 2017.