Porter v. Wegman et al

Filing 167

ORDER Regarding Plaintiff's 157 Motion for Attendance of Incarcerated and Unincarcerated Witnesses; ORDER Directing Plaintiff to Provide Witness Information signed by Magistrate Judge Barbara A. McAuliffe on 07/11/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN ELLIS PORTER,

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Plaintiff,
v.

Case No. 1:10-cv-01500-BAM (PC)
ORDER REGARDING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED AND
UNINCARCERATED WITNESSES

CHERYLEE WEGMAN,
(ECF No. 157)
Defendant.
ORDER DIRECTING PLAINTIFF TO
PROVIDE WITNESS INFORMATION

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Plaintiff Brian Ellis Porter (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On July 11, 2017, the Court held

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a telephonic trial confirmation hearing. Plaintiff, appearing pro se, and Aseil Mohmoud and

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Monica Anderson, counsel for Defendant, attended the hearing.

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Currently before the Court is Plaintiff’s June 19, 2017 motion for the attendance of the

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following unincarcerated witnesses: (1) Paul Shleffar (Jewish Chaplain of CDCR), (2) Denice

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Porter, (3) Ellis Porter, and (4) Lisa Turner, and the following incarcerated witnesses: (1) Donald

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Ray Perry (CDCR #P92110, Correctional Training Facility (“Soledad State Prison”)); (2) George

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Hamilton (CDCR #K54885, Pelican Bay State Prison); (3) Allen B. Williams (CDCR #C09851,

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Ironwood State Prison); and (4) Jimmy Serna (CDCR #AK2741, Kern Valley State Prison).

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Defendants filed an opposition on June 30, 2017. (ECF No. 159.)
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The Court will also address the two additional witnesses listed in Plaintiff’s pretrial

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statement: Francisco Diaz, Catholic Chaplain at Kern Valley State Prison, and Maurice Howard,

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Muslim Chaplain at Kern Valley State Prison. (ECF No. 162, p. 9.) The Court heard arguments

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on this matter at the telephonic trial confirmation hearing on July 11, 2017.

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I.

Motion for Attendance of Incarcerated Witnesses
In determining whether to grant Plaintiff’s motions for the attendance of incarcerated

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witnesses, the Court considers the following factors: (1) whether the inmate’s presence will

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substantially further the resolution of the case, (2) the security risks presented by the inmate’s

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

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until the inmate is released without prejudice to the cause asserted. Wiggins v. Cty. of Alameda,

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717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.

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1994) (district court did not abuse its discretion when it concluded the inconvenience and expense

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

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the witness’s testimony could not be determined), abrogated on other grounds by Sandin v.

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Conner, 515 U.S. 472 (1995).
For reasons stated on the record, Plaintiff’s motion for incarcerated witnesses is denied.

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II.

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Motion for Attendance of Unincarcerated Witnesses
As discussed on the record, Plaintiff has failed to include declarations showing that each

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unincarcerated witness is willing to testify and that each witness has actual knowledge of relevant

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facts.

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A. Voluntary Unincarcerated Witnesses

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Plaintiff stated during the trial confirmation hearing that Denice Porter, Ellis Porter, and

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Lisa Turner have agreed to testify voluntarily, and do not require subpoenas. As stated on the

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record, Plaintiff may also call Francisco Diaz and Maurice Howard to appear voluntarily, but the

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Court will not compel these witnesses to appear by subpoena.

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Plaintiff is advised that any unincarcerated witnesses who may voluntarily appear will not

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be precluded at this time, but an offer of proof must be made before they will be permitted to

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testify. Plaintiff’s offer of proof must show the willingness of the prospective witness to testify
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and that each witness has actual knowledge of relevant facts. (See ECF No. 152, pp. 2–3.)

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B. Involuntary Unincarcerated Witness

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For reasons stated on the record, Plaintiff will be permitted to call Rabbi Paul Shleffar to

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testify. Pursuant to the Court’s April 17, 2017 Amended Scheduling Order, Plaintiff must notify

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the Court in writing of the location of Rabbi Paul Shleffar. The Court will calculate the travel

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expense for the witness and notify Plaintiff of the amount. Plaintiff must then submit a money

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order made payable to the witness for the full amount of the witness’s travel expenses plus the

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daily witness fee of $40.00. The subpoena will not be served upon the unincarcerated witness by

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the United States Marshal unless the money order is tendered to the Court.

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III.

Conclusion and Order
Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for the attendance of

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unincarcerated and incarcerated witnesses (ECF No. 157) is GRANTED IN PART and DENIED

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IN PART:
1. Plaintiff’s motion for the attendance of incarcerated witnesses Donald Ray Perry

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(CDCR #P92110, Correctional Training Facility (“Soledad State Prison”)); George

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Hamilton (CDCR #K54885, Pelican Bay State Prison); Allen B. Williams (CDCR

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#C09851, Ironwood State Prison); and Jimmy Serna (CDCR #AK2741, Kern Valley

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State Prison), is DENIED;

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2. Plaintiff’s motion for the attendance of voluntary unincarcerated witnesses Denice

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Porter, Ellis Porter, Lisa Turner, Francisco Diaz (Catholic Chaplain at Kern Valley

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State Prison), and Maurice Howard (Muslim Chaplain at Kern Valley State Prison) is

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GRANTED, subject to Plaintiff’s offer of proof for each witness;
3. Plaintiff’s motion for the attendance of involuntary unincarcerated witness Paul

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Shleffar (Jewish Chaplain of CDCR) is GRANTED, subject to:

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a. Plaintiff’s submission of the location of Rabbi Shleffar, due on or before July

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17, 2017; and
b. Plaintiff’s submission of the money order with applicable witness fees, due on

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or before August 4, 2017.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 11, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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