Johnson v. Gonzalez et al

Filing 138

ORDER GRANTING 127 Plaintiff's Motion for Attendance of Incarcerated Witnesses signed by Magistrate Judge Barbara A. McAuliffe on 3/4/2015. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY JOHNSON, 12 13 14 15 Plaintiff, v. L. GONZALEZ, et al., Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:09-cv-01264-BAM PC ORDER GRANTING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES (ECF No. 127) 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Anthony Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s claim of excessive force in violation of the Eighth Amendment against Defendants Gonzales (sued as L. Gonzalez) and Murrieta arising out of an alleged assault following the takedown by Defendant Gonzales on June 9, 2008. A jury trial is set for April 28, 2015. On November 19, 2014, Plaintiff filed a motion for the attendance of the following incarcerated witnesses at trial: (1) Mario Richard Madrid (AP-3673); and (2) Hayward L. Mayhan (P60322, California State Prison, Corcoran). (ECF No. 127.) Defendants did not file an opposition. I. Legal Standard In determining whether to grant Plaintiff’s motion for the attendance of incarcerated witnesses, the 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 1 1 transportation and security, and (4) whether the suit can be stayed until the inmate is released without 2 prejudice to the cause asserted. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 3 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (district court did not abuse its 4 discretion when it concluded the inconvenience and expense of transporting inmate witness 5 outweighed any benefit he could provide where the importance of the witness’s testimony could not be 6 determined), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). 7 II. Discussion Inmate Madrid 8 9 Plaintiff declares under penalty of perjury that Inmate Madrid was an eye witness to two 10 correctional officers swinging their arms as if punching an inmate who was lying on the ground. 11 Inmate Madrid reportedly told Plaintiff that he would testify if Plaintiff pursued a lawsuit. (ECF No. 12 127, pp. 3-4.) 13 Inmate Madrid appears to be an eye witness to events at issue in this action. As such, Inmate 14 Madrid’s presence will substantially further the resolution of the case. There is no indication that 15 there would be extraordinary security risks presented by Inmate Madrid’s presence at trial. 16 Accordingly, Plaintiff’s request for the attendance of Inmate Madrid at trial shall be granted. Inmate Mayhan 17 18 In support of the motion, Plaintiff submits the declaration if Inmate Mayhan. Inmate Mayhan 19 declares under penalty of perjury that on June 9, 2008, he witnessed a correctional officer grab and 20 slam a handcuffed prisoner to the ground. Once the prisoner was on the ground, two correctional 21 officers attacked him with various punches. Given the distance, Inmate Mayhan did not recognize the 22 correctional officers or prisoner. Inmate Mayhan later found out the prisoner was Plaintiff Johnson 23 and one of the correctional officers was Gonzales. (ECF No. 127, pp. 6-7, Declaration of Hayward L. 24 Mayhan.) Inmate Mayhan reportedly told Plaintiff that he would testify if called upon to do so. (ECF 25 No. 127, p. 4.) 26 27 Inmate Mayhan appears to be an eye witness to the events at issue in this action, and his presence at trial will substantially further the resolution of the case. There is no indication that there 28 2 1 would be any extraordinary security risks presented by Inmate Mayhan’s presence at trial. 2 Accordingly, Plaintiff’s request for the attendance of Inmate Mayhan at trial shall be granted. 3 III. 4 For the reasons stated, Plaintiff’s motion for attendance of Inmates Madrid and Mayhan is 5 Conclusion and Order HEREBY GRANTED. 6 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara March 4, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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