Brown v. Fambrough et al

Filing 73

ORDER signed by Magistrate Judge Jennifer L. Thurston on 3/20/2012 granting in part and denying in part 64 Motion for attendance of incarcerated witnesses. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THORNELL BROWN,

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Plaintiff,
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vs.
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JAWAYNE FAMBROUGH, et al.,
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Defendants.
_____________________________________ )

Case No. 1:09-cv-00573 JLT (PC)
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
ATTENDANCE OF INCARCERATED
WITNESSES
(Doc. 64)

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Plaintiff Thornell Brown is a prisoner in the custody of the California Department of

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Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. In this action, plaintiff claims that Defendants

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Jawayne Fambrough, Jackson Copeland, V. Yates, Stephaine Amoako, Jerome Peacock, and John

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Whitehead violated his rights protected by the Eighth Amendment.

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Pending before the Court is Plaintiff’s motion for the attendance of incarcerated witnesses

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at trial. (Doc. 64) Defendant has opposed this motion. (Doc. 68 )

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I.

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Analysis
On November 8, 2011, the Court issued its Second Scheduling Order. (Doc. 61) This

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order set forth the requirements for the parties to obtain the attendance of incarcerated witnesses.

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As to incarcerated witnesses who agree to testify, in the motion seeking the witnesses’ attendance
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at trial, the moving party was required to demonstrate that the witness had first hand knowledge

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of the events and is willing to testify. Id. at 2-3. A detailed declaration is required to

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demonstrate both issues. Id. The same requirements apply for incarcerated witness who have

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not agreed to testify voluntarily except that the moving party is required to detail this refusal. Id.

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Plaintiff’s operative motion requested the attendance of 7 incarcerated witnesses. (Doc.

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64) Of these, the Court cannot locate inmate Isaiah Trammel in custody. Therefore, as to this

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witness, the motion for his attendance at trial is DENIED.

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In addition, Plaintiff identifies inmate Dante Youngblood as a prospective witness. (Doc.
64 at 15) There is no showing that this witness has any personal knowledge of the events on

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August 23, 2006 but with this testimony, Plaintiff would seek to present only evidence of

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Defendant Fambrough’s character. In essence, Plaintiff asserts that Dante Youngblood would

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testify that Defendant Fambrough used excessive force on Youngblood at some time in the past.

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Toward this end, the Court has not been provided any analysis that would allow this character

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evidence to be presented under F.R.E. 404(a) or (b). Thus, the motion for his attendance of this

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inmate-witness at trial is DENIED.

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Likewise, Plaintiff requests Calvin Lane be permitted to attend trial to give testimony.

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(Doc. 64 at 14-15) Plaintiff contends that Lane was present on the yard at the time of the event

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and saw Defendants Fambrough and Garcia escorting Plaintiff in a “violent manner.” Id.

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Exactly what Lane saw or heard is not explained. Likewise, there is no indication what occurred

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that, from Lane’s perspective, appeared to be “violent.” Plaintiff’s description of Mr. Lane’s

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testimony fails to comply with the requirements for obtaining the attendance of incarcerated

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witnesses. (Doc. 61 at 3) (“Whether the declaration is made by the party or by the prospective

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witness, it must be specific about the incident, when and where it occurred, who was present, and

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how the prospective witness happened to be in a position to see or to hear what occurred at the

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time it occurred.”). Therefore, the request for inmate Lane to be present at trial is DENIED.

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Finally, Plaintiff requests the attendance of inmate-witnesses Bernhardt Chambliss,

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Darren Whitney, Curley John Broussard and Sean Slade. (Doc. 64 at 10-14) Plaintiff attests that

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each of these witnesses saw and/or heard the events at issue and were in a position to hear and/or
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see the events. Therefore, Plaintiff has made the requisite showing that the witnesses have

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personal knowledge of the events. Nevertheless, Defendants argue that these witnesses will

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testify differently from the account they gave on the day of the event. (Doc. 68 at 2) They

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provide an incident report prepared after the event in which statements by these prospective

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witnesses are reported. Id. at 6. Notably, the report is not made under penalty of perjury nor is

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there any attestation that the statements set forth therein are accurate, what mode of recordation,

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if any, was used or any other demonstration of the reliability of the report. Indeed, there is no

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showing, even, that the statements attributed to the prospective witnesses were given under oath.

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Because the Court cannot now determine whether Plaintiff’s description of these witnesses

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testimomy should be believed or whether Defendants’ account should be believed, the witnesses

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will be permitted to testify and it will be for the jury to decide–as they will which each witness–

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whether they are being truthful. Therefore, the request for inmates Chambliss, Whitney,

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Broussard and Slade to be present at trial is GRANTED.

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ORDER

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For the reasons set forth above, the Court hereby ORDERS:

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1.

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The motion for the attendance of incarcerated witnesses Bernhardt Chambliss,
Darren Whitney, Curley John Broussard and Sean Slade is GRANTED;

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The motion for the attendance of Dante Youngblood and Isaiah Trammel is
DENIED.

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IT IS SO ORDERED.

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Dated: March 19, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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