Bryant v. Gallagher et al

Filing 315

ORDER Denying Inmate Contreras 306 Motion to be Excluded as Plaintiff's Witness; ORDER Granting Appearance by Video Conference signed by Magistrate Judge Barbara A. McAuliffe on 02/27/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN D. BRYANT,

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Plaintiff,
v.
GALLAGHER, et al.,

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Case No. 1:11-cv-00446-BAM (PC)
ORDER DENYING INMATE
CONTRERAS’S MOTION TO BE
EXCLUDED AS PLAINTIFF’S WITNESS
ORDER GRANTING APPEARANCE BY
VIDEO CONFERENCE

Defendants.
(ECF No. 306)

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I.

Introduction

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Plaintiff Kevin D. Bryant (“Plaintiff”) is a state prisoner proceeding in forma pauperis in

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this civil rights action under 42 U.S.C. § 1983. This action proceeds against Defendants Gallagher

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and Romero for conspiracy, retaliation in violation of the First Amendment, and failure to protect

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in violation of the Eighth Amendment; and against Defendant Romero for deliberate indifference

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to serious medical needs in violation of the Eighth Amendment.

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On August 4, 2016, the Court granted Plaintiff’s motion for the attendance of incarcerated

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witnesses Edward A. Vargas (CDCR #J63103), Ricardo Contreras (CDCR #F56749) and Rufus

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B. Levels (CDCR #F62510). (ECF No. 257). On September 28, 2016, the Court issued writs of

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habeas corpus ad testificandum to transport Inmates Vargas, Contreras and Levels to testify at

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trial scheduled on October 17, 2016. (ECF Nos. 273-275.) On October 10, 2016, Plaintiff’s newly

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retained counsel filed a notice of appearance and an ex parte application to continue the trial and
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modify dates. (ECF Nos. 285, 286.) Following a telephonic hearing, the Court granted the ex

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parte application, continued the trial, and vacated the transportation writs. (ECF Nos. 291, 295-

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297.) Trial is currently set for May 15, 2017. (ECF No. 310.)

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On November 4, 2016, Inmate Contreras filed a motion to be excluded as Plaintiff’s

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witness. (ECF No. 306.) Inmate Contreras contends that he does not have any material or useful

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information and that he does not wish to be transported to testify. (Id.) The Court subsequently

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directed the parties to file responses setting forth their respective positions as to whether Inmate

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Contreras should be compelled to attend trial and testify in this case. (ECF No. 309.) The Court

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also provided Inmate Contreras an opportunity to respond to the parties’ responses if he so

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desired. (Id.) The parties filed their responses on December 19, 2016, (ECF Nos. 311, 312), and

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Inmate Contreras filed his response on January 9, 2017, (ECF No. 314).
The Court’s Prior Order Regarding Attendance of Inmate Contreras

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II.

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On August 4, 2016, the Court granted Plaintiff’s motion for the attendance of Inmate

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Contreras at trial. (ECF No. 257.) In his motion, Plaintiff stated under penalty of perjury that

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inmate Contreras, was an eye- and ear-witness to the assault, heard Plaintiff repeatedly ask

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Defendant Romero to call medical staff for help, saw Plaintiff show Defendant Romero his

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injuries, watched Plaintiff sit in front of his cell trying to tend to his injuries, and witnessed

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Plaintiff get his walker and hop out of the dayroom. Plaintiff represented that Inmate Contreras

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was willing to testify. Based upon Plaintiff’s testimony, the Court found that Inmate Contreras

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may be an eye or ear witness in this action and that it did not appear the testimony will result in

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undue delay, a waste of time, or the needless presentation of cumulative evidence. (Id. at 3.) The

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Court stated that Plaintiff had shown a likelihood that Inmate Contreras would have relevant

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information, and that his testimony would further the resolution of this action. (Id.)

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III.

Motion to be Excluded as Plaintiff’s Witness
a. Inmate Contreras’s Moving Papers

Inmate Contreras contends he does not wish to testify and that he should not be required

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to attend trial because he does not have any material or useful information. (ECF No. 306.) He

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indicates that he has spoken with counsel for both parties and informed them about his purported
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lack of material information. (Id.) Inmate Contreras also argues that he should not be required to

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attend trial because of the undue hardships he experienced from the transport for the original trial

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date. He was unable to sleep for two days, almost vomited about ten times each way on the bus,

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and had to see a psychiatrist because he almost had an anxiety attack. (Id.) The previous transport

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experience also adversely affected his college, self-help groups and entire programming. (Id.)

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b. Plaintiff’s Response
Plaintiff contends that the Court should require Inmate Contreras to testify in this action,

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because he has material information regarding the events in question. (ECF No. 312 at 1.) Inmate

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Contreras is his former cellmate and will provide testimony about hearing the attack on Plaintiff

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as it was happening, Plaintiff’s appearance following the attack, including Plaintiff appearing to

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have been attacked or in a fight immediately following the incident. (Id. at 2.) Plaintiff also

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anticipates Inmate Contreras will provide testimony about his conversation with Plaintiff

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immediately after the attack, seeing Plaintiff “babying” his leg immediately following the

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incident, giving Plaintiff a walking device so he could go to the medical office and seeing

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Plaintiff trying to avoid walking on his broken leg when he exited the dayroom. (Id.) Plaintiff

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further anticipates that Inmate Contreras will provide testimony about Plaintiff’s injury, recovery,

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pain and suffering in the weeks and months following the incident. (Id.) However, Plaintiff

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agrees that Inmate Contreras should be accommodated and allowed to testify by video conference

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to avoid further disruption and hardship. (Id. at 2-3.)

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c. Defendants’ Response
Defendants argue that, based on Inmate Contreras’s representations, the Court should

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vacate its prior order allowing Plaintiff to call Inmate Contreras as a witness and not compel his

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appearance at trial. (ECF No. 311 at 2.) Plaintiff’s initial request to compel Inmate Contreras’s

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attendance at trial was not supported by a declaration or prior statement from Inmate Contreras

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himself. (Id. at 2-3.) However, the Court has a direct statement from Inmate Contreras, denying

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he has useful or material information. (Id. at 3.) Defendants argue that Inmate Contreras’s

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testimony will not substantially further the resolution of the case. (ECF No. 311 at 3.)

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Defendants further argue that transporting Inmate Contreras will entail great expense and
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inconvenience to the CDCR. (Id.) Inmate Contreras is incarcerated more than 400 miles from the

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courthouse, and will require temporary incarceration in at least three different correctional

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facilities and disrupt his programming. (Id.) Defendants speculate that Inmate Contreras’s desire

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to avoid being transported again may create security risks for the prison guards by refusing to exit

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his cell and necessitating extraction. (Id.) Defendants also contend that Inmate Contreras’s lack of

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personal knowledge and life sentence weigh against staying the action. (Id.)

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In the alternative, Defendants suggest that the Court should require Plaintiff to show

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Inmate Contreras has relevant personal knowledge that will substantially advance the case. (Id.)

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Defendants state that if Plaintiff meets this burden, the Court should allow Inmate Contreras to

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testify by video conference to reduce his burden and mental anguish. (Id.)

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d. Inmate Contreras’s Reply to the Parties’ Responses

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Inmate Contreras argues that any testimony he can provide will only be speculative,

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repetitive, or is easily discerned from the evidence, and will otherwise waste judicial time and

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resources. (ECF No. 314 at 1.) Inmate Contreras states he cannot testify that Plaintiff was

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“attacked.” (Id. at 1-2.) Inmate Contreras indicates that he can only testify to the following: (1)

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hearing what could have been a scuffle or some disruptive noise while he was in the shower; (2)

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witnessing Plaintiff sitting on a bench looking uneasy, babying his leg and claiming he thought

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his leg might be broken; (3) giving Plaintiff a walking device to go to medical and seeing Plaintiff

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trying not to walk on his injured/broken leg; (4) seeing Plaintiff returning to the cell in a

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wheelchair with a leg cast; (5) seeing Plaintiff was given pain medication multiple times a day

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and Plaintiff take pain medication; and (6) observing that Plaintiff had the cast on for several

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weeks, was restricted to movement, and suffered the typical effects of a broken leg. (Id. at 1-4.)

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Inmate Contreras contends that much of his testimony will be repetitive because it can be

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can be presented through Plaintiff’s medical evaluation reports or personnel. (Id. at 2.) Medical

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reports or personnel can testify to Plaintiff’s wheel chair and leg cast, how the injury affected

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Plaintiff, how Plaintiff was trying to avoid walking on his broken leg. He argues that his

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testimony about Plaintiff “babying” his leg is unnecessary because such information is in medical

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reports. Inmate Contreras asserts that his testimony about the conversation with Plaintiff
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following the incident would be repetitive because the context of the conversation involved

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Inmate Contreras seeing Plaintiff sitting on a bench, nursing his leg, and Plaintiff claiming that he

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thought his leg might be broken. (Id.) In the alternative, Inmate Contreras indicates that he would

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be willing to testify by video conference. (Id.)

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IV.

Analysis

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Having considered the arguments and evidence, the Court finds no basis to alter its prior

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order. Inmate Contreras has material and useful information that will aid the resolution of this

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case. He was both an eye and ear witness to some portion of the events in this action.1Thus, the

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Court will order Inmate Contreras’s attendance at trial to provide testimony. Inmate Contreras

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and the parties have expressed a willingness to have him testify via video conference. The Court

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now turns to whether Inmate Contreras should be permitted to testify by remote means.

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The Federal Rules of Civil Procedure permit testimony in open court from a different

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location “[f]or good cause in compelling circumstances and with appropriate safeguards…” Fed.

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R. Civ. P. 43(a). Good cause and compelling circumstances may exist where a significant

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geographic distance separates the witness from the location of the court proceedings. See e.g.,

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Lyons v. Leonhardt, 2013 WL 3807996, at *11 (D. Nev. July 19, 2013) (video conference

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testimony appropriate when witness was located more than 100 miles from the courthouse).

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“Good cause and compelling circumstances may be established with relative ease if all parties

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agree that testimony should be presented by transmission.” Fed. R. Civ. P. 43(a) advisory

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committee notes (1996 Amendments.)

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A significant geographic distance separates Inmate Contreras and the location of these

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court proceedings. Ironwood State Prison is located in Blythe, California, more than 400 miles

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from the courthouse in Fresno. Transporting Inmate Contreras from that facility would be costly,

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require significant time, present housing issues, and would be disruptive for Inmate Contreras.

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See Saenz v. Reeves, No. 1:09-CV-00557- BAM P, 2013 WL 1636045, at *2 (E.D. Cal. Apr. 16,

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2013) (permitting video testimony where producing the witness at trial would involve the expense

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As explained below, the Court has reconsidered whether Inmate Contreras is a critical witness. (ECF No. 257.)

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of transporting him, the expense of additional security to separate him from Plaintiff while at the

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courthouse and a potential security risk.) The expense and inconvenience associated with

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transporting Inmate Contreras outweighs the benefits of having him physically present in court to

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give his testimony. See Walker, 14 F.3d at 1422.

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Further, Inmate Contreras experienced significant hardships to his health and prison

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programming because of the previous transport for the original trial date. The Court is persuaded,

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in particular, by the hardship and disruption Inmate Contreras endured during the previous

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transport and finds it will not put Inmate Contreras through the same ordeal again.

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Moreover, the Court now has direct evidence about the content of Inmate Contreras’s

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anticipated testimony, which contradicts some of the facts Plaintiff originally represented would

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be the subject of his testimony. (Compare ECF Nos. 244 and 314.) For instance, Plaintiff

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originally represented that Inmate Contreras could testify as to Plaintiff’s statements to Defendant

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Romero to summon medical help and saw Plaintiff show Defendant Romero his broken foot. But

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Inmate Contreras does not corroborate these statements and that he can only testify that he saw

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Plaintiff “babying” his leg. He also cannot testify as to the “attack” either. Therefore, his

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testimony may not be as critical as originally represented to the Court. (ECF No. 257.)

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Further, the parties and Inmate Contreras have expressed a willingness to have Inmate

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Contreras testify by video conference. The Court therefore finds that the need for Inmate

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Contreras to testify as an eye and ear witness would be satisfied by permitting testimony by video

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conference.

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Accordingly, the Court finds good cause in this instance to allow the testimony of Inmate

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Contreras by video conference. Therefore, the Court will deny Inmate Contreras’s motion to be

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excluded as Plaintiff’s witness. The Court will order that Inmate Contreras be made available to

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testify via video conference on the first day of trial.

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V.

Conclusion and Order

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Accordingly, the Court HEREBY ORDERS that:

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1. Inmate Contreras’s motion to be excluded as Plaintiff’s witness is DENIED;

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2. Inmate Contreras shall appear at trial by video conference in accordance with Federal
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Rule of Civil Procedure 43(a). The Court will issue the necessary writ of habeas

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corpus ad testificandum for an appearance by video conference before the trial in this

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matter;

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3. Plaintiff’s Counsel is ORDERED to confirm with Ironwood State Prison that its video

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equipment can connect with the courthouse video system. Plaintiff’s Counsel is further

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ordered to schedule a test call with Ironwood State Prison and the Clerk’s Office

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Information Technology staff, and also to confirm the date and time for Inmate

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Contreras’s testimony itself. All confirmations and equipment testing should be

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completed on or before April 14, 2017. If the video equipment is determined to be

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incompatible with the courthouse video system, Plaintiff’s Counsel shall file a status

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report by April 21, 2017 so informing the Court; and

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4. Plaintiff’s Counsel shall contact Courtroom Deputy Harriet Herman no later than May

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1, 2017 at [e-mail] or [phone] to coordinate setup of the

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video conference for trial.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 27, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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