Cantu v. Garcia et al

Filing 170

ORDER DENYING Plaintiff's Motion for Attendance of Incarcerated Witness Without Prejudice 167 , signed by District Judge Dale A. Drozd on 5/17/16: 21-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSHUA J. CANTU,

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Plaintiff,

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v.

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BAPTISTE, et al.,

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No. 1:09-cv-00177 DAD DLB
ORDER DENYING PLAINTIFF’S MOTION
FOR ATTENDANCE OF INCARCERATED
WITNESS WITHOUT PREJUDICE
(Doc. No. 167)

Defendants.

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Plaintiff Joshua J. Cantu (“Plaintiff”) is a former state prisoner proceeding pro se in this

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civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 15,

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2009, in the U.S. District Court for the Northern District of California, and it was transferred to

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this court on January 26, 2009. The action is proceeding on plaintiff’s June 6, 2013, second

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amended complaint on: (1) an Eighth Amendment excessive force claim against defendant

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Garcia; and (2) an Eighth Amendment failure to protect claim against defendants Goree and

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Baptiste.

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The matter is set for trial on August 9, 2016, before United States District Court Judge
Dale A. Drozd.
On May 2, 2016, Plaintiff filed a motion seeking the attendance at trial of inmate Jose

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DeLaRiva, CDCR #T-55196. Plaintiff does not believe that inmate DeLaRiva will testify

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voluntarily. Defendants did not oppose the motion.
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DISCUSSION

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As set forth in the second scheduling order, the court will not order the attendance of an

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incarcerated witness unless it is satisfied that the prospective witness has actual knowledge of

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relevant facts. Where the inmate witness refuses to testify voluntarily, the court has the discretion

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to grant plaintiff’s motion even in the absence of express consent if it finds that the witness has

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relevant information and his presence will substantially further resolution of the case. Wiggins v.

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Alameda County, 717 F.2d 466, 468 n.1 (9th Cir 1983).

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In addition, in determining whether to issue a writ of habeas corpus ad testificandum
directing the production of an inmate witness for trial, the district court must consider the

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following factors: (1) whether the prisoner’s presence will substantially further the resolution of

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the case; (2) security risks presented by the prisoner’s presence; (3) the expense of the prisoner’s

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transportation and safekeeping; and (4) whether the suit can be stayed until the prisoner is

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released without prejudice to the cause asserted. Wiggins, 717 F.2d at 468 n.1 (citing Ballard v.

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Spradley, 557 F.2d 476, 480 (5th Cir. 1977)); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.

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1994).

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Here, plaintiff states that inmate DeLaRiva witnessed the incident in question and has

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actual knowledge of relevant facts. However, as explained in the court’s second scheduling

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order, where plaintiff has actual firsthand knowledge that the prospective witness was an

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eyewitness to the relevant facts, plaintiff must swear by declaration signed under penalty of

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perjury that the prospective witness has actual knowledge.1 The declaration must be specific

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about the incident, when and where it occurred, who was present, and how the prospective

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witness happened to be in a position to see or to hear what occurred at the time it occurred. Doc.

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No. 163, at 3.

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While it appears that inmate DeLaRiva’s testimony may substantially further the

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resolution of this action, plaintiff has not provided a declaration attesting to inmate DeLaRiva’s

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A party may also provide a declaration from the prospective witness, signed under penalty of perjury, describing
the relevant facts. Plaintiff has not submitted a declaration from inmate DeLaRiva.

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actual knowledge. 2
Therefore, the Court DENIES plaintiff’s motion WITHOUT PREJUDICE to refiling with

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the required declaration. Any renewed, properly supported motion by plaintiff must be made

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within twenty-one (21) days of the date of service of this order.

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IT IS SO ORDERED.

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Dated:

May 17, 2016
UNITED STATES DISTRICT JUDGE

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There is no evidence in the record which weighs against transporting plaintiff’s inmate witness due to heightened
security risks, undue expense, or anticipated release from custody in the near future.

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