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Warner v. Cate

United States District Court, E.D. California

July 25, 2017

EARL WARNER, Plaintiff,
v.
M. CATE, et al., Defendants.

          ORDER STRIKING PLAINTIFF'S FIRST MOTION FOR THE ATTENDANCE OF INCARCERATED WITNESSES (ECF NO. 154) ORDER GRANTING IN PART PLAINTIFF'S SECOND MOTION FOR THE ATTENDANCE OF INCARCERATED WITNESSES (ECF NO. 181) CLERK TO STRIKE ECF NO. 154

          MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner proceeding with counsel and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Walker, Prokop, Spralding, Fellows, and Davis (formerly McGaha) on Plaintiff's Eighth Amendment claim that Defendants intentionally housed Plaintiff in the same unit as his enemy knowing that doing so posed a serious threat to Plaintiff's safety.

         On January 9, 2017, while Plaintiff still proceeded pro se, he filed a motion for the attendance of incarcerated witnesses at trial. (ECF No. 154.) Plaintiff also propounded a request for the attendance of incarcerated witnesses on January 4, 2017. (ECF No. 151 at 4-9.) On January 20, 2017, the Court appointed counsel. (ECF No. 161.) On June 2, 2017 counsel filed a new motion for attendance of incarcerated witnesses at trial and asked to withdraw Plaintiff's prior requests. (ECF No. 181.) Accordingly, the request in ECF No. 151 will be disregarded, and the motion at ECF No. 154 stricken.

         Defendants filed an opposition to the instant motion. (ECF No. 190.) The matter stands ready for adjudication.

         II. Plaintiff's Motion

         Plaintiff seeks to have four inmates made available to testify at trial: (1) Paul Salcido; (2) Robert Siordia; (3) Van-Albert Siegrist; and (4) Chad Galvin. He attests that Salcido is willing to testify voluntarily, Siordia is unwilling to testify voluntarily, and Siegrist and Galvin have not indicated whether they are willing to testify voluntarily or involuntarily.

         Plaintiff states that Siordia has first-hand knowledge of relevant facts and events. Salcido indicates he too has first-hand knowledge of relevant events (Decl. of P. Salcido (ECF No. 181-2.)) Siegrist and Galvin each possess knowledge of Siordia's well-known gang affiliation and propensity for violence, as well as intimate knowledge of the prison gang culture. (Decl. of V. Siegrist (ECF No. 181-4); Decl. of C. Galvin (ECF No. 181-5.))

         Defendants oppose the motion as to inmates Salcido, Siegrist, and Galvin on the grounds that these inmates do not possess actual knowledge of the relevant events in this case and their testimony will not substantially further the resolution of this case. Specifically, none of these inmates witnessed the January 19, 2011 classification committee hearing during which Defendants allegedly disregarded Plaintiff's enemy concerns and assigned Plaintiff to the same housing unit as Siordia. Defendants maintain that any information these inmates provide regarding Siordia's gang affiliations and reputation for violence would be merely cumulative of Plaintiff and inmate Siordia's own potential testimony at trial.

         III. Legal Standard

         The Court has discretion to grant a motion for the attendance of incarcerated witnesses if the moving party has shown the witnesses have relevant information and the Court determines the witnesses' presence will substantially further the resolution of the case. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983).

         IV. Discussion

         Defendants do not object to Plaintiff's request to call inmate Siordia as a witness. It appears inmate Siordia could offer relevant information regarding Plaintiff's failure to protect claim. Plaintiff's motion will be granted as to Siordia.

         Inmate Salcido avers that he was housed on the same unit as Plaintiff on January 19 and 20, 2011. He states that he witnessed Siordia be removed from his cell on January 19, 2011, on instructions to go to the facility program office. On his return Siordia told Salcido that Plaintiff had claimed Siordia warned Plaintiff to stay off of the yard. Salcido also witnessed custody officers escort Plaintiff and his belongings to the unit shortly after Siordia's return. He overheard the officers say Plaintiff tried to refuse the cell move to avoid Siordia. Salcido also says he delivered a “kite” (a note) to Siordia on Plaintiff's behalf. Over the next two days, he ...


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