Calloway v. Veal et al

Filing 191

ORDER Denying Plaintiff's 172 Motion for Attendance of Incarcerated Witnesses signed by Chief Judge Lawrence J. O'Neill on 12/08/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI J. CALLOWAY,

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Plaintiff,

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vs.

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ORDER DENYING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED WITNESSES
(ECF No. 172.)

C/O HAYWARD and

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1:08-cv-01896-LJO-GSA-PC

C/O OAKS,

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Defendants.

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I.

BACKGROUND

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Jamisi J. Calloway (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action under 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on December 10, 2008. (ECF No. 1.) This action now proceeds with

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Plaintiff’s Third Amended Complaint filed on October 4, 2009, against defendants C/O

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Hayward and C/O Oaks, for excessive force in violation of the Eighth Amendment during

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events occurring on May 7, 2008, at Corcoran State Prison. (ECF No. 20.)

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This case is scheduled for jury trial to commence on January 31, 2017, before District

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Judge Lawrence J. O’Neill. A telephonic trial confirmation hearing is scheduled for December

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15, 2016 at 8:30 a.m., before District Judge Lawrence J. O’Neill. A settlement conference is

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scheduled on December 21, 2016, before Magistrate Judge Gary S. Austin.
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On September 6, 2016, Plaintiff filed a motion for attendance of incarcerated witnesses.

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(ECF No. 172.) On November 17, 2016, Defendants filed an opposition to the motion. (ECF

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No. 186.) Plaintiff has not filed a reply to the opposition. Plaintiff’s motion is now before the

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Court. Local Rule 230(l).

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II.

ATTENDANCE OF INMATE WITNESSES AT TRIAL

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On August 1, 2016, the Court issued the Second Scheduling Order advising Plaintiff of

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the requirements for bringing inmate witnesses to trial who voluntarily agree to testify. (ECF

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No. 164 ¶1.) Plaintiff was informed that the Court must issue an order before Plaintiff’s

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incarcerated witnesses can come to court to testify. (Id.) The Court will not issue such an

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order unless it is satisfied that: (a) the prospective witness is willing to attend, and (b) the

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prospective witness has actual knowledge of relevant facts. (Id.) Plaintiff was advised that he

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must file a Motion for Attendance of Incarcerated Witnesses, stating the name, address, and

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prison identification number of each such Witness, accompanied by a declaration by Plaintiff or

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each Witness, showing that each Witness is willing to testify and has actual knowledge of

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relevant facts. (Id.) The declaration must show that the prospective Witness was an eyewitness

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or ear-witness to relevant facts, and must be specific about the incident at issue in this case,

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including when and where it occurred, who was present, and how the prospective Witness

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happened to be in a position to see or hear what occurred at the time it occurred. (Id.)

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III.

PLAINTIFF’S MOTION

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Plaintiff seeks to bring nine inmate witnesses to trial: (1) Alton R. Garrett; (2) Saune

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Livas; (3) Relaun Deadman; (4) Roderick Daniel; (5) Archuleta Orlando; (6) Troy D. Mayban,

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Jr.; (7) Roy Bonner; (8) Michael Webb; and (9) William Brown. Plaintiff has provided the

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names, CDCR numbers, and locations of all nine of the prospective witnesses. (ECF No. 172

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at 3-5.) Plaintiff also submitted his own declaration, in which he states that “[e]ach [of the]

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named witnesses agreed and sweared (sic) through declaration under penalty of perjury if

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called they would testify of the willingness to appear if called to testify about Oaks and

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Howard[’s] conduct as correctional officers.”

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declaration of Alton R. Garrett, one of his prospective witnesses. (ECF No. 178.)
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(Id. at 6.)

In addition, Plaintiff filed the

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Defendants argue that Plaintiff has not shown how the presence of any of his nine

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incarcerated witnesses at trial will substantially further the resolution of this case. Defendants

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assert that Plaintiff’s declaration fails to describe where any of the witnesses were located that

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would have placed them in a position to see or hear what transpired in the hospital. Defendants

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argue that the subject matter of the nine witnesses’ expected testimony is not relevant to the

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excessive force claim at issue in this case. Defendants also argue that Alton R. Garrett’s

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declaration fails to provide the detailed information required under the Second Scheduling

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Order, such as where Garrett was located and what, if anything, he saw on May 7, 2008.

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IV.

DISCUSSION

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In his declaration, Plaintiff represents that each of the nine Witnesses will testify to

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first-hand abuse, corruption, racial discrimination and excessive force. However, Plaintiff only

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indicates that they will testify about their own experiences, not their personal knowledge of

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incidents concerning Plaintiff or specific acts against Plaintiff by Defendants in this action. For

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example, Plaintiff states that Alton Garrett “will testify to the first hand abuse, corruption,

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racial discrimination and excessive force after he demanded adequate housing and medical care

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at Corcoran State Prison #1.” (Plaintiff’s Decl., ECF No. 172 at 3 ¶1.) Such testimony is not

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relevant to Plaintiff’s claims.1

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Plaintiff submitted Alton Garrett’s declaration, but submitted no declarations by any of

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the other prospective Witnesses. In his declaration, Garrett states his intention to appear as a

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witness against defendants Oaks and Hayward, and “to give relevant testimony of both

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Defendants’ prior assaults on Plaintiff and myself.” (Garrett Decl., ECF No. 178 at 1:20-11.)

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However, Garrett does not specify that he was an eyewitness or ear-witness to the assaults at

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issue in this case. Garrett has not given the specific information required to show that his

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testimony will support Plaintiff’s claims against defendants Oaks and Hayward. To the extent

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that Garrett knows of assaults by Defendants that occurred prior to the assaults at issue, such

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“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401.
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evidence is inadmissible as character evidence under Federal Rule of Evidence 404, which

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provides that “[e]vidence of a person’s character or character trait is not admissible to prove

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that on a particular occasion the person acted in accordance with the character or trait” and

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“[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in

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order to show that on a particular occasion the person acted in accordance with the character.”

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Fed. R. Evid. 404(a)(1), (b)(1).

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Based on the foregoing, the Court finds that Plaintiff has not met the requirements of

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the Court’s Second Scheduling Order for the Court to bring any of his incarcerated witnesses to

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testify at trial. Plaintiff has not shown that any of his prospective witnesses have actual

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knowledge of relevant facts in this case. Therefore, Plaintiff’s motion shall be denied.

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V.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s

motion

attendance of incarcerated witnesses, filed on September 6, 2016, is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

December 8, 2016

UNITED STATES CHIEF DISTRICT JUDGE

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for