Tafilele v. Harrington et al

Filing 83

ORDER Granting Plaintiff's Motion For Attendance Of Incarcerated Witnesses (Document 78 ), signed by District Judge Lawrence J. O'Neill on 1/7/2014. Plaintiffs Motion for the Attendance of Incarcerated Witnesses is GRANTED as to Inmates Ronald Hwang, CDCR# V-07990, Mark Howard, CDCR# K-66087, Joshua Carillo, CDCR# P-96744 and Pyung Ryoo, CDCR #F-88924. (Fahrney, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

ASOFA V. TAFILELE,

12

Plaintiff,

13
14
15

vs.
HERNANDEZ, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:10cv01493-LJO-DLB PC
ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED WITNESSES
(Document 78)

16
17

Plaintiff Asofa V. Tafilele (“Plaintiff”), a state prisoner proceeding pro se and in forma

18

pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. This action for

19

damages and equitable relief is proceeding against (1) Defendants Mata, Hernandez, Williams,

20
21
22

Spurgeon and Murphy for use of excessive physical force, in violation of the Eighth
Amendment; and (2) Defendant Meza for deliberate indifference to a serious medical need in
violation of the Eighth Amendment.

23

The matter is set for jury trial on March 4, 2014, at 8:30 a.m., before the Honorable
24
25
26
27

Lawrence J. O’Neill.
On December 12, 2013, Plaintiff filed a motion seeking the attendance of four
incarcerated witnesses. Defendants opposed the motion on December 26, 2013.

28
1

1
2
3
4

DISCUSSION
In determining whether to grant Plaintiff’s motions for the attendance of his proposed
witnesses, factors to be taken into consideration include (1) whether the inmate’s presence will
substantially further the resolution of the case, (2) the security risks presented by the inmate’s

5

presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed
6
7
8
9

until the inmate is released without prejudice to the cause asserted. 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

10

and expense of transporting inmate witness outweighed any benefit he could provide where the

11

importance of the witness’s testimony could not be determined), abrogated on other grounds by

12

Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995).

13

Plaintiff seeks the attendance of four incarcerated witnesses. Defendants oppose the

14

attendance of each witness for various reasons. Insofar as they contend that Plaintiff’s failure to

15

identify the correct place of incarceration “casts doubt upon his claim that they are all willing to

16

testify at trial,” their argument is without merit. Opp’n 2. The reality of incarceration sometimes

17
18

makes it difficult to locate an inmate who has been relocated since the incident, and the Court
and/or Defendants’ counsel often assists in locating the inmate. Plaintiff’s failure does not, as

19

Defendants suggest, cast doubt on his statements.
20
21
22
23

Defendants also fault Plaintiff for failing to attach declarations for each of the prospective
witnesses and contend, without explanation, that Plaintiff’s own declaration addressing the
necessary issues is “insufficient. . .” Opp’n 2. To the contrary, pursuant to the Second

24

Scheduling Order, the party’s own declaration can support a request for the attendance of an

25

incarcerated witness.

26
27
28
2

1
2
3
4
5

Defendants admit that Inmates Hwang and Ryoo have personal knowledge of the
incidents at issue, and the Court agrees. The Court will allow the testimony of Inmates Hwang
and Ryoo.
As for Inmate Howard, it does appear that his testimony may overlap a portion of Inmate
Hwang’s testimony. Both inmates witnessed Defendant Meza’s interaction with Plaintiff,

6
7
8
9
10

including Plaintiff’s complaints of pain. Both inmates also told Defendant Meza that Plaintiff’s
arm appeared to be broken. In the context of a deliberate indifference claim, however, their
testimony is not cumulative. The Court will allow Inmate Howard’s testimony.
Finally, Defendants argue that Inmate Carillo’s foundation to testify is limited, in part,

11

because he only “saw Plaintiff dragged through the rotunda.” Opp’n 3. Certainly, Inmate

12

Carillo’s testimony will be limited to facts of which he has personal knowledge, and it appears

13

that he has personal knowledge of a portion of the incident. Moreover, Inmate Carillo’s

14

declaration is slightly more detailed than Defendants contend. He states that he “noticed a

15

couple correctional officers dragging Tafilele through the building rotunda by his feet,” and that

16

“while the officers were dragging him, several other officers were kicking him in the head and

17

body.” Opp’n, Ex. A. The Court will allow Inmate Carillo’s testimony.

18
19

ORDER
Plaintiff’s Motion for the Attendance of Incarcerated Witnesses is GRANTED as to

20
21
22
23

Inmates Ronald Hwang, CDCR# V-07990, Mark Howard, CDCR# K-66087, Joshua Carillo,
CDCR# P-96744 and Pyung Ryoo, CDCR #F-88924.
IT IS SO ORDERED.

24
25

Dated:

/s/ Lawrence J. O’Neill

January 7, 2014

UNITED STATES DISTRICT JUDGE

26
27
28
3