United States District Court, E.D. California
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
ATTENDANCE OF INCARCERATED WITNESSES VIA VIDEO CONFERENCE
(ECF NO. 254)
action is proceeding against defendants Brannum and Herrera
on “Plaintiff's Devereaux substantive due
process claim, retaliation claim, and conspiracy
claim.” (ECF No. 265, p. 3).
11, 2019, Plaintiff filed motion for attendance of
incarcerated witnesses via video conference, a supporting
declaration, and declarations from the prospective witnesses.
(ECF No. 254). On July 17, 2019, Defendants filed their
opposition to the motion. (ECF No. 260). On July 23, 2019,
Plaintiff (through counsel) filed a reply. (ECF No. 264).
seeks to bring two inmate witnesses to trial: (1) Andre
Johnson; and (2) George Reed III. (ECF No. 254, p. 1).
Defendants object to the attendance of both witnesses. (ECF
reasons described below, the Court finds that Andre Johnson
and George Reed III should be brought to testify at the
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).
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 Lopez v. Cate, 2016 WL 3940341, at *2 (E.D. Cal.
July 20, 2016).
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 Andre Johnson and George Reed III
should to come to court to testify.
witnesses will allegedly testify that they witnessed the
incident on March 4, 2009, and that no assault took place.
(ECF No. 254, pgs. 11 & 13).
object to the attendance of these witnesses on three grounds.
First, Defendants object because Plaintiff failed to
establish whether either witness is willing to testify
voluntarily, which was required by the Court's scheduling
Defendants object because, in April of 2018, defense counsel
reached out to Andre Johnson regarding Plaintiff's claims
in this case, and Andre Johnson “did not recall the
events described within his declaration, but ultimately had a
completely different recollection than the events described
by Plaintiff and described by Mr. Johnson, within the 2009
declaration Plaintiff included within his motion. Mr. Johnson
described Plaintiff being handcuffed and removed from his
cell and being assaulted by two unidentified officer[s] by
being thrown against a wall. Further, Mr. Johnson within his
declaration or in his conversation to Defense counsel, could
not identify Defendants.” (ECF No. 260, pgs. 3-4)
(citations omitted). Thus, having Andre Johnson testify at
trial would not substantially further the resolution of this
Defendants argue that, given the cell configuration at Kern
Valley State Prison, neither Andre Johnson nor George Reed
III could “have seen whether Plaintiff grabbed Herrera
through the food port, as they would not have been able to
see the front of Plaintiff's cell door out of their own
cell door.” (Id. at 3). “Further,
neither Mr. Reed nor Mr. Johnson name the Defendants as the
two witnesses they claim to have observed on March 4,
Defendants' first objection, Defendants are correct that
Plaintiff failed to comply with the Court's order, which
he did have an obligation to do. However, the Court does not
need to know whether the witnesses will testify voluntarily
in order to resolve this motion. Accordingly, the Court will