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Hypolite v. Zamora

United States District Court, E.D. California

March 30, 2017

AVERY HYPOLITE, Plaintiff,
v.
R. ZAMORA, Defendant.

          ORDER REGARDING PLAINTIFF'S MOTION FOR INCARCERATED WITNESSES [ECF NO. 66]

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.

         Plaintiff Avery Hypolite is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         This 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.

         Currently before the Court is Plaintiff's motion for incarcerated witnesses, filed February 8, 2017. Defendant filed an opposition on March 22, 2017.

         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. “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.

         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 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.)

         A. Inmate Egnacio Joshua

         Plaintiff 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 Fulks.

         Defendant 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.

         The 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.

         Furthermore, 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.

         B. ...


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