Cantu v. Garcia et al

Filing 180

ORDER GRANTING Plaintiff's Motion for Attendance of Incarcerated Witness 173 , signed by District Judge Dale A. Drozd on 6/17/16. (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 GRANTING PLAINTIFF’S MOTION
FOR ATTENDANCE OF INCARCERATED
WITNESS
(Doc. No. 173)

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 Northern District of California, and it was transferred to this court on January 26,

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2009. The action is proceeding on plaintiff’s second amended complaint, filed June 6, 2013, on

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(1) an Eighth Amendment excessive force claim against defendant Garcia; and (2) an Eighth

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Amendment failure to protect claim against defendants Goree and Baptiste. The matter is set for

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trial on August 9, 2016, before the undersigned.

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On May 2, 2016, plaintiff filed a motion seeking the attendance of inmate Jose DeLaRiva,

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CDCR #T-55196. Defendants did not oppose the motion. However, plaintiff did not provide the

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required declaration demonstrating that inmate DeLaRiva had actual knowledge of the incident.

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The court therefore denied the motion without prejudice on May 17, 2016.

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Plaintiff refiled the motion on May 26, 2016. Plaintiff does not believe that inmate
DeLaRiva will testify voluntarily. Defendants again 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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Cty. of Alameda, 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

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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)); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th

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Cir. 1994).

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Plaintiff has submitted his declaration demonstrating inmate DeLaRiva witnessed the

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events at issue and therefore has actual knowledge of the relevant facts. (Doc. No. 173.) The

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court finds that his testimony will substantially further the resolution of this action. Additionally,

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there is no evidence in the record which weighs against transporting plaintiff’s inmate witness

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due to heightened security risks, undue expense, or anticipated release from custody in the near

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future.1

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Plaintiff states that inmate DeLaRiva is serving a life term.
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ORDER

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Accordingly, plaintiff’s motion for the attendance of incarcerated witnesses (Doc. No.

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173) is GRANTED. The court will authorize and allow the transportation and attendance of

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inmate Jose DeLaRiva, CDCR#T-55196 at the trial of this action.

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IT IS SO ORDERED.

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Dated:

June 17, 2016
UNITED STATES DISTRICT JUDGE

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