United States District Court, E.D. California
ELAINE K. VILLAREAL, Plaintiff,
COUNTY OF FRESNO, Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
ATTENDANCE OF WITNESSES (ECF NO. 38)ORDER DIRECTING CLERK TO
SEND PLAINTIFF A COPY OF THIS ORDER
K. Villareal (“Plaintiff”) is a prisoner
proceeding pro se and in forma pauperis with
this civil rights action filed pursuant to 42 U.S.C. §
1983. Plaintiff filed the complaint commencing this action on
September 17, 2015. (ECF No. 1). This action now proceeds on
Plaintiff's original complaint (ECF No. 1) against
defendant County of Fresno (“Defendant”) on a
claim of unconstitutional conditions of confinement. (ECF No.
7). An Albino evidentiary hearing is currently set
for November 14, 2017, at 10:30 a.m. (ECF No. 48).
19, 2017, Plaintiff filed a motion for attendance of
witnesses (“the Motion”). (ECF No. 38). On July
26, 2017, Defendant objected. (ECF No. 39). Because Plaintiff
provided insufficient information regarding what four of her
prospective witnesses would testify to, the Court required
Plaintiff to submit additional information. (ECF No. 40). On
August 16, 2017, Plaintiff submitted additional information.
(ECF No. 45). On August 23, 2017, Defendant filed an
objection. (ECF No. 50).
motion for attendance of witnesses is now before the Court.
ATTENDANCE OF INMATE WITNESSES
30, 2017, the Court issued an order regarding the procedures
related to the evidentiary hearing. (ECF No. 37). Plaintiff
was informed that if she wanted the Court to compel witnesses
to attend or to arrange for attendance of witnesses via the
issuance of habeas corpus ad testificandum, she would need to
file a motion for attendance of witnesses. (Id. at
p. 2). Plaintiff was told that “[t]he motion must: (1)
state the name, address, and prison identification number (if
any) of each witness Plaintiff wants to call; (2) explain
what relevant information each witness has, and how that
witness has personal knowledge of the relevant information;
and (3) state whether each such witness is willing to
voluntarily testify.” (Id.).
seeks to bring eight inmate witnesses to trial: (1) Shannon
Reis; (2) Rachael Vasquez; (3) Angie Padilla; (4) Kristen
Thompson; (5) Kristy Flores; (6) Sylvia Perez; (7) Monica
Macias; and (8) Angelica Gutierrez. (ECF No. 38, pgs. 1-4).
objected to the Motion on the ground that allowing eight
witnesses would be cumulative, and costly. (ECF No. 39, p.
4). Defendant also objected to the Motion on the grounds that
“only ‘two' of Plaintiff's prospective
witnesses (Padilla and perhaps Macias) appears [sic] to have
any alleged (or even possible) personal or actual knowledge
of the Jail's grievance process during the relevant
time-frame, ” and that, based on what Plaintiff
provided, none of the eight prospective witnesses'
testimony is sufficiently relevant (Id. at 4-5).
Plaintiff filed her additional evidence, Defendant objected
on the grounds that Plaintiff failed to file any proof
regarding the testimony of her prospective witnesses by the
Court's deadline, and that Plaintiff once again failed to
show that her prospective witnesses' testimony is
sufficiently relevant. (ECF No. 50, pgs. 2-5).
determination whether to issue a writ of habeas corpus ad
testificandum rests within the sound discretion of the
district court.” Cummings v. Adams, 2006 U.S.
Dist. LEXIS 9381, *6, 2006 WL 449095 (E.D. Cal. Feb. 17,
2006). Accord Walker v. Sumner, 14 F.3d 1415, 1422
(9th Cir. 1994).
issues at the Albino evidentiary hearing are whether
Plaintiff attempted to exhaust her administrative remedies
and whether the grievance procedure was available to
Plaintiff before September 17, 2015. Accordingly, the most
relevant witnesses are ones that can testify regarding the
availability of the grievance procedure in the months before
September 17, 2015. As the Court informed the parties,
“[a]lthough the Court will hear evidence regarding
interference with filing grievances after the filing of the
complaint, [the evidence] must have sufficient relevance to
the issue of the availability of those procedures to
Plaintiff before filing the complaint.” (ECF No. 37,
conducting a “cost-benefit analysis regarding whether
the inmate[s] should come to court, ”
Cummings, 2006 U.S. Dist. LEXIS 9381 at *7, the
Court has determined that Angie Padilla, Monica Macias, and
Kristy Flores should to come to ...