Oliverez v. Aibitre et al

Filing 78

ORDER GRANTING PLAINTIFFS MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES DIEGO HERNANDEZ AND BRYAN RANSOM 59 , 74 AND DISREGARDING PLAINTIFFS OPPOSITION TO DEFENDANTS LISTED WITNESSES 73 signed by District Judge Lawrence J. O'Neill on 6/10/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LOUIS OLIVEREZ, JR.,

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CASE NO. 1:09-cv-00352-LJO-SKO PC

Plaintiff,

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v.

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ORDER GRANTING PLAINTIFF’S MOTION
FOR ATTENDANCE OF INCARCERATED
WITNESSES DIEGO HERNANDEZ AND
BRYAN RANSOM AND DISREGARDING
PLAINTIFF’S OPPOSITION TO
DEFENDANT’S LISTED WITNESSES

BEN ALBITRE,

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Defendant.
(Docs. 59, 73, and 74)

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I.

Background

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Plaintiff Louis Oliverez, Jr. is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action for damages is proceeding on Plaintiff’s

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amended complaint, filed on May 7, 2009, against Defendant Albitre for violation of the Free

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Exercise Clause of the First Amendment of the United States Constitution. Plaintiff’s claim arises

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out of his inability to gain access to his previously-purchased spiritual oil for prayer and worship

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while he was at California State Prison-Corcoran (“Corcoran”) in 2008.

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This matter is set for jury trial on October 1, 2013. On January 2, 2013, Plaintiff filed a

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motion seeking the attendance of incarcerated witnesses, in compliance with the scheduling order

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filed on October 5, 2012. Defendant filed an opposition on January 31, 2013. Plaintiff filed a reply

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and a supplemental motion on March 4, 2013. Also on March 4, 2013, Plaintiff filed an opposition

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to the witnesses listed in Defendant’s pretrial statement.

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II.

Motion for Attendance of Incarcerated Witnesses

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Plaintiff seeks the attendance of inmate witnesses Diego Hernandez and Bryan Ransom.

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Plaintiff represents that both inmates told him they would testify voluntarily and they both possess

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actual knowledge of relevant facts. Plaintiff provides Diego Hernandez’s declaration, in which

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Hernandez attests of his awareness, in November and December 2008, of Plaintiff’s attempts to

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appeal the denial of prayer oil. Plaintiff also represents that Bryan Ransom has the ability to testify

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about the discriminatory actions taken by Defendant against Wiccan inmates.

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Defendant opposes Plaintiff’s motion on the ground that Plaintiff has not shown either inmate

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was an eye or ear witness to the denial of Plaintiff’s prayer oil by Defendant Albitre in September

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2008.

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In support of his reply and supplemental motion, Plaintiff attested under penalty of perjury

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that inmates Hernandez and Ransom were present in the Facility C Chaplain’s Office at Corcoran

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when Plaintiff requested his prayer oil from Defendant and was given “false” excuses by Defendant

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regarding why he could not have his prayer oil. Plaintiff also attested that both inmates were present

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when, after two previous denials, Defendant finally provided Plaintiff with some prayer oil. Plaintiff

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argues that as such, both inmates were eye and ear witnesses to the events relevant to his claim that

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Defendant wrongfully deprived him of his prayer oil.

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When determining whether to issue a writ of habeas corpus ad testificandum, the district

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court must consider the following factors: (1) whether the prisoner’s presence will substantially

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

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expense of the prisoner’s transportation and safekeeping; and (4) whether the suit can be stayed until

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the prisoner is released without prejudice to the cause asserted. Wiggins v. County of Alameda, 717

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F.2d 466, 468 n.1 (9th Cir. 1983) (citing Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977));

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Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994).

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With respect to the first factor, Plaintiff attested under penalty of perjury that both witnesses

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were present when he asked for his prayer oil and his request was denied by Defendant, and they

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were later present when he subsequently received some oil. While the Court notes that this more

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detailed information was not present in Plaintiff’s original motion, it is nonetheless before the Court
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now and its belated submission neither prejudiced Defendant nor caused any delay in the

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proceedings. In light of the leniency accorded to pro se litigants in this Circuit and in the absence

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of any actual prejudice to Defendant, the Court exercises its discretion to consider the information

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provided and it finds that Plaintiff’s supplemental declaration is sufficient to satisfy the first factor.

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Turning to the third factor, while inmate Hernandez is now incarcerated in San Diego, the

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fact that he must be transported to another institution and housed temporarily does not outweigh the

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importance of eye and/or ear witnesses at trial. Furthermore, given that Plaintiff is only seeking two

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witnesses, any argument of cumulativeness would not be persuasive. See e.g., Loux v. U.S., 389 F.2d

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911, 917 (9th Cir. 1968) (no abuse of discretion in criminal case where district court limited the

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number of inmate witnesses to five, from ten proposed inmate witnesses). While district courts have

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broad discretion “to limit the number of witnesses on a particular point to avoid cumulative

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evidence,” Lutz v. Glendale Union High School, 403 F.3d 1061, 1071 (9th Cir. 2005), they must not

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“sacrifice justice in the name of efficiency,” Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001).

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Thus, despite the need to transport inmate Hernandez from San Diego, this factor does not weigh

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against permitting his attendance at trial.

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Finally, there is no information in the record regarding factors two and four.

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In conclusion, the Court finds that Plaintiff’s motion for the attendance of inmates Diego

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Hernandez and Bryan Ransom should be granted.

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III.

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Opposition to Defendant’s Witnesses
Plaintiff objects to five of the six witnesses Defendant listed in his pretrial statement.

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Plaintiff’s objections mirror the arguments made by Defendant in opposition to Plaintiff’s motion

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for the attendance of incarcerated witnesses regarding expense and actual knowledge of relevant

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facts. However, the Wiggins factors are relevant in evaluating whether to transport incarcerated

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witnesses at government expense. Defendant is not required to satisfy the Wiggins factors in listing

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his trial witnesses. Furthermore, as Plaintiff is not aware of what these witnesses’ proposed

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testimony is, his argument that their testimony is irrelevant is based purely on speculation.

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Plaintiff may file a motion in limine in compliance with the deadline set in the Pretrial

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Order or he may move to exclude a witness or testimony at trial, but he is not in the position to
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challenge their appearance at trial under the Wiggins factors. Accordingly, Plaintiff’s opposition is

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disregarded.

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IV.

Order

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for the attendance of incarcerated witnesses Diego Hernandez and

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Bryan Ransom, filed on January 2, 2013, and supplemented on March 4, 2013, is

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GRANTED; and

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2.

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Plaintiff’s opposition to Defendant’s witnesses, filed on March 4, 2013, is
DISREGARDED.

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IT IS SO ORDERED.

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Dated:

June 10, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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