Saenz v. Spearman, et al.

Filing 122

ORDER GRANTING IN PART and DENYING IN PART Plaintiff's Motion for the Attendance of Incarcerated Witnesses 113 ORDER DENYING Motion to Quash Anticipated Subpoenas 118 ; ORDER DIRECTING Service, signed by Magistrate Judge Barbara A. McAuliffe on 4/16/13. (cc via email: Fresno IT Dept.) (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT SAENZ,
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Plaintiff,

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v.
SGT. D. REEVES,

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Defendant.
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1:09-cv-00557- BAM (PC)
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR THE ATTENDANCE OF
INCARCERATED WITNESSES
(ECF No. 113)
ORDER DENYING MOTION TO QUASH
ANTICIPATED SUBPOENAS
(ECF No. 118)
ORDER DIRECTING SERVICE

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______________________________________________________________________________

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I.

Introduction

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Plaintiff Robert Gonzales Saenz (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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against Defendant Reeves for retaliation in violation of the First Amendment and deliberate

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indifference to conditions of confinement in violation of the Eighth Amendment. The matter is

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set for jury trial on June 18, 2013.
On February 25, 2013, Plaintiff filed a motion for the attendance of incarcerated

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witnesses to testify at trial. Plaintiff requests the attendance of the following inmates: (1)

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Armando Abreu, H-16924; (2) Richard Angulo, J-70372; and (2) Peter Rodriquez, G-58147.

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(ECF No. 113.) On March 25, 2013, Defendant Reeves filed an opposition. (ECF No. 114.)

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II.

Relevant Allegations in Second Amended Complaint
On September 14, 2007, Plaintiff was housed with inmate Abreu in the Administrative

Housing Unit (“AHU”) at Pleasant Valley State Prison (“PVSP”). Plaintiff objected to being
housed with inmate Abreu and pointed out that there was a custodial gap between them.
Defendant Reeves threatened disciplinary action if Plaintiff rejected inmate Abreu as a cellmate.
Five days later, on September 19, 2007, inmate Abreu asked to speak with Defendant
Reeves. The conversation resulted in Plaintiff being placed in a 3x3 holding cage. Defendant
Reeves approached Plaintiff and stated that he knew why Plaintiff had been transferred from the
California Substance Abuse Treatment Facility and that he knew Plaintiff had filed complaints
against officers at Salinas Valley State Prison. Defendant Reeves accused Plaintiff of raping his
cellmate, inmate Abreu. Defendant Reeves told Plaintiff that he was going to make sure Plaintiff
got time for it and that he was going to “fuck with” Plaintiff until he left PVSP. Defendant
Reeves also threatened Plaintiff with bodily injury.
He subsequently was transported to Fresno Community Hospital, where Ms. C. Felix, a
forensic sexual abuse examiner, gathered DNA samples. Although Plaintiff was permitted
water, he was not permitted toilet use for four hours.
Plaintiff alleges that Defendant Reeves and inmate Abreu collaboratively orchestrated,
and Defendant Reeves implemented, a fabricated rape charge. The rape charge produced a rules
violation report and crime incident reports.
Plaintiff was held in the ASU pending DNA test results. The DNA test results found no
evidence of rape. The rules violation was dismissed on July 10, 2009, because of due process
violations. Defendant Reeves was aware that inmate Abreu had previously made a false rape
accusation against another prisoner.
Plaintiff further alleges that on December 2, 2007, an unidentified correctional officer
planted a weapon in his cell. On December 27, 2007, Plaintiff surrendered the weapon and
Defendant Reeves removed the weapon from Plaintiff’s front pocket where it was in a sealed

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envelope. Defendant Reeves then ordered Plaintiff to be held in a 3x3 holding cell for 4 ½ hours
without drinking water or toilet use. After Defendant Reeves ordered a search of Plaintiff and
his cell, he ordered Plaintiff moved to corner cell without insulation. Plaintiff was housed in this
bitterly cold cell, which experienced extreme temperatures, from December 27, 2007, to May 19,
2008. Plaintiff was denied extra clothing, blankets and heat. Plaintiff’s request for extra clothing
and blankets were referred to Defendant Reeves, who denied all requests. Defendant Reeves
charged Plaintiff with possession of a weapon and Plaintiff was found guilty.
III.

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A. Legal Standard

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In determining whether to grant Plaintiff’s motion for the attendance of inmates, the

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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.1 Wiggins v. County of Alameda, 717 F.2d
466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994)
(district court did not abuse its discretion when it concluded the inconvenience and expense of
transporting inmate witness outweighed any benefit he could provide where the importance of
the witness’s testimony could not be determined), abrogated on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995).
B. Discussion

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Plaintiff requests the attendance of inmates Armando Abreu (H-16924), Richard Angulo

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Motion for the Attendance of Incarcerated Witnesses

(J-70372) and Peter Rodriquez (G-58147). Plaintiff claims that inmate Abreu will provide
testimony “as to his participation in the orchestration of the false rape charge.” (ECF No. 113, p.
2.) Plaintiff further claims that inmates Angulo and Rodriguez will both testify as to their
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The Court has no information on the release dates of any of the prospective witnesses and this factor shall
not be discussed.

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“personal knowledge of being housed in a corner (end of tier cell) [and] its weather conditions
during winter season.” (ECF No. 113, p. 2.)
Defendant Reeves indicates that inmate Abreu is willing to testify at trial regarding the
alleged assault by Plaintiff, but remains in fear of Plaintiff. However, Defendant Reeves opposes
the attendance of inmates Angulo and Rodriquez because their testimony would be irrelevant to
this action. (ECF No. 114.)
1. Inmate Armando Abreu
Plaintiff indicates that inmate Abreu is a hostile witness. According to Defendant
Reeves, inmate Abreu is willing to testify at trial regarding the alleged assault by Plaintiff, but
does not want to be transported to the same courtroom and holding facilities as Plaintiff because
“he is in fear for his safety as Plaintiff has attacked him previously and threatened him
repeatedly.” (ECF No. 114, p. 4.) Although neither party identifies inmate Abreu’s current
housing, Defendant Reeves reports that inmate Abreu is housed at an institution that allows for
appearance at court via video conference.
On March 29, 2013, inmate Abreu, who is housed at California State Prison, Los
Angeles, in Lancaster, California, filed a motion to quash the anticipated subpoena in this action.
He claims that he “has nothing of value for the Court” and he invokes the Fifth Amendment.
(ECF No. 118, p. 1.)
Although he has asserted otherwise, it is clear that inmate Abreu has relevant information
regarding the alleged assault and subsequent events. Inmate Abreu does not explain why he is
attempting to invoke the Fifth Amendment. The Court finds that inmate Abreu’s testimony will
substantially further the resolution of this case. The Court also finds that producing this witness
at trial would involve the expense of transporting him, the expense of additional security to
separate him from Plaintiff while at the courthouse and a potential security risk to inmate Abreu.
The Federal Rules of Civil Procedure permit testimony in open court from a different
location “[f]or good cause in compelling circumstances and with appropriate safeguards.” Fed.

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R. Civ. P. 43(a); Beltran-Tirado v. Immigration and Naturalization Services, 213 F.3d 1179,
1186 (9th Cir. 2000). Due to the significant expense and security risk of producing inmate
Abreu at trial, the Court finds such compelling circumstances in this instance, and good cause
exists to allow the testimony of inmate Abreu by video conference. Accordingly, Plaintiff’s
motion for the attendance of inmate Abreu to testify at trial will be granted, and it will be ordered
that inmate Abreu be made available to testify at trial via video conference on the first day of
trial.
2.

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Plaintiff reports that inmates Angulo and Rodriguez are willing to testify voluntarily at

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trial. Defendant Reeves opposes the motion to transport inmates Angulo and Rodriquez because
their anticipated testimony regarding the conditions in a corner cell appears irrelevant to
Plaintiff’s claims in this action. Specifically, Defendant Reeves argues that these inmates should
not be transported to testify as there is no indication that either inmate witnessed the events of
this lawsuit or that they were ever housed in the PVSP cell at issue. 1
Based on Plaintiff’s moving papers, he anticipates that inmates Angulo and Rodriguez

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will provide testimony regarding being housed in a corner cell. (ECF No. 113, p. 2.) Inmates
Angulo and Rodriguez are currently housed at R. J. Donavan Correctional Facility. At the
telephonic trial confirmation hearing, Plaintiff reported that neither inmate was housed at PVSP
or in the cell at issue during the relevant time period. Instead, Plaintiff expects these witnesses to
provide general testimony regarding the conditions in corner cells, which have two concrete
walls.
As discussed at the telephonic trial confirmation hearing, the Court finds that this

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Inmates Angulo and Rodriguez

evidence is marginally relevant to Plaintiff’s claims and Plaintiff shall be allowed to present such
evidence at trial. However, Plaintiff shall not be allowed to present duplicative and cumulative

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Defendant Reeves also argues that because Plaintiff failed to properly disclose the identities of Angulo and
Rodriguez during discovery, his motion for their attendance should be denied. Fed. R. Civ. P. 37(c).

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testimony from both witnesses. Given the Court’s determination, at the telephonic trial
confirmation hearing, Plaintiff elected to have inmate Angulo attend trial.
Accordingly, Plaintiff’s motion for the attendance of inmate Angulo will be granted, and

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Plaintiff’s motion for the attendance of inmate Rodriguez will be denied.
IV.

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As stated above, Inmate Armando Abreu filed a motion to quash anticipated subpoenas in

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this action. The Court has determined that Inmate Abreu’s potential testimony is relevant to this
action and intends to grant Plaintiff’s motion for the attendance of inmate Abreu by video
conference. Accordingly, Inmate Abreu’s motion to quash the anticipated subpoena will be
denied.
V.

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R. Civ. P. 43(a). Counsel for Defendant is required to arrange for the video
conference by coordinating with the prison at which inmate Abreu is housed and the

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Clerk’s Office Information Technology staff;

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2.

Plaintiff’s request for the attendance of Inmate Richard Angulo (J-70372) is
GRANTED;

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3.

Plaintiff’s request for the attendance of Inmate Peter Rodriguez (G-58147) is
DENIED;

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Plaintiff’s request for the attendance of Inmate Armando Abreu (H-16924) is
GRANTED. Inmate Abreu shall appear at trial by video conference pursuant to Fed.

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Conclusion

For the reasons stated, it HEREBY ORDERED as follows:

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Motion to Quash Anticipated Subpoenas

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Inmate Armando Abreu’s motion to quash anticipated subpoenas is DENIED; and

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5. The Clerk of the Court is directed to send a copy of this order on Inmate Armando
Abreu (H-16924) at Lancaster State Prison, 44750 60th Street West, P.O. Box 4610

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#FCBI-204-L, Lancaster, CA 93539-4610.

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IT IS SO ORDERED.

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/s/ Barbara

April 16, 2013

Dated:

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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A. McAuliffe