Martinez v. Allison et al

Filing 122

CORRECTED ORDER Denying Motion at Docket 110 , signed by Chief Judge Ralph R. Beistline on 1/29/16. Corrected at Date Line. Money Order #23017833494 for Witness Fees Returned to Sender. (Verduzco, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
RONALD F. MARTINEZ,
Case No. 1:11-cv-001749-RRB
Plaintiff,
CORRECTED ORDER DENYING
MOTION AT DOCKET 110

vs.
KATHLEEN ALLISON, Warden, et al.,

(CORRECTED DATE LINE)

Defendants.

At Docket 110 Plaintiff Ronald F. Martinez has requested that the Court obtain the
attendance of Correctional Sgt. Dave Johnson at trial. Plaintiff’s motion was filed on
January 19, 2016.1 Concurrently therewith Plaintiff filed his Amended Witness List adding
Johnson.2
The Trial Scheduling and Case Management Order specifically provided: (1) witness
lists were to be filed not later than January 11, 2016; and (2) Plaintiff was ordered to notify
the court of names and addresses of unincarcerated witnesses who refused to testify
willingly not later than January 15, 2016.3 Plaintiff’s Witness List, which listed only himself

1

The date it was placed in the mail, the deemed filing date under the prison “mailbox” rule.
2
3

Docket 109.
Docket 100.

CORRECTED ORDER DENYING MOTION AT DOCKET 110
Martinez v. Allison 1:11-cv-01749-RRB – 1

as a witness to be called, was filed January 14, 2016.4 Thus, Plaintiff’s witness list was
itself three days late; and his amended witness list eight days late. Even Plaintiff’s
notification that Johnson refused to voluntarily appear was four days late.
Here it is clear that Plaintiff has failed to comply with the Court’s Trial Scheduling
and Case Management Order.5 Indeed, the relief sought by Plaintiff is that he not be held
to the deadlines specified. In short, Plaintiff seeks modification of that Order. While the
Court is not inclined to impose any sanction on Plaintiff for his failure to timely comply with
the Trial Scheduling and Case Management Order in the first instance, granting him the
additional relief required to permit the filing of the Amended Witness List presents a
different issue. For the reasons that follow, the Court declines to order the attendance of
Correctional Sgt. Dave Johns at trial.
First, the Court notes that Plaintiff has failed to show that the failure to initially list
Johnson as a witness was either inadvertent or the product of excusable neglect.6 Indeed,
Plaintiff’s very motion eviscerates any such finding. In his declaration Plaintiff
acknowledges that he “predicted that defense counsel * * * would not include Sgt.
D. Johnson in Defendant’s witness list.”7 Plaintiff contends that he was required to wait until

4

Docket 107.

5

For which the Court may impose sanctions. Fed. R. Civ. P. 16(f).

6

Cf. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1387 (9th Cir. 1988)
(upholding dismissal under Fed. R. Civ. P. 60 for failure to comply with the order of the
court).
7

Docket 111.

CORRECTED ORDER DENYING MOTION AT DOCKET 110
Martinez v. Allison 1:11-cv-01749-RRB – 2

Defendant filed his witness list to determine if his request for the attendance of Johnson
would be necessary.
If Plaintiff believed the testimony of Johnson was relevant and necessary it was his
responsibility to list and ensure Johnson’s attendance at trial. Even if Defendant had listed
Johnson as a potential witness would not have ensured Johnson’s presence at the time
Plaintiff presented his case-in-chief. Moreover, nothing in the rules of procedure require
that a party call to testify every witness listed. Indeed, the requirement that a party list all
potential witnesses is to preclude “surprise” witnesses at trial. Here, the fact that he
expected Defendant not to call Johnson and had not received a response from Johnson
regarding his willingness to testify, eliminates any plausible excuse, e.g., inadvertence or
excusable neglect, for Plaintiff’s omission of Johnson from his witness list.
Second, Johnson’s expected testimony, indicates that it is unnecessary to any
issue to be presented to the jury. In his Amended Witness List Plaintiff states:
2. Correctional Officer D. Johnson will testify that he was assigned as a
Sergeant on April 24,2010 and supervising security coverage for contraband
surveillance watch. Sgt. D. Johnson will testify he ordered Defendant Davis
to remove/replace the contraband surveillance watch (CSW) restraints from
Martinez and about what he witnessed prior to Defendant Davis body
slamming Martinez onto the ground face first.8
In a Crime/Incident Report attached to Plaintiffs Admissions and Denials to
Defendants Statement of Undisputed Facts and Plaintiffs Statement of Disputed Facts,
Sgt. Johnson stated:

8

Docket 109.

CORRECTED ORDER DENYING MOTION AT DOCKET 110
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On Saturday, April 24, 2010 at approximately 1652 hours, I was supervising
Officer Davis while he was applying waist restraints to Inmate Martinez T86494 who is currently on Contraband Surveillance Watch. Before the
handcuffs were applied. a sock and a tube were slipped over Inmate
Martinez's hands and wrists to prevent him from retrieving contraband.
While applying the waist restraints Officer Davis had Inmate Martinez face
away from him, and he proceeded to apply the handcuffs. Inmate Martinez
became argumentative about his handcuffs, saying they were too tight and
he wanted them loosened at which time Officer Davis rechecked the
handcuffs and found them to be adequate. When Officer Davis began
applying the restraints, around Inmate Martinez’s waist he attempted to pull
the chains away from Davis stating “Why are you being a little bitch” while
turning towards Officer Davis to face him, Officer Davis stopped Inmate
Martinez and ordered him to stay facing away from him. Officer Davis again
attempted to apply the restraints around Inmate Martinez's waist when he
tried to pull the restraints away from his body and turn around again stated
“Why are you being a little bitch” necessitating Officer Davis to force Inmate
Martinez to the ground for compliance. Inmate Martinez was held on the
ground until adequate personnel responded, during this time medical was
summoned for a CDCR 7219 medical examination.9
What is puzzling to the Court is how Sgt. Johnson’s testimony might favor Plaintiff. To the
contrary, if Sgt. Johnson’s testimony follows his written report, because it logically tends
to support a finding that Defendant did not use excessive force, it would more likely benefit
the Defense. There is no indication that nearly six years later Sgt. Johnson would testify
that he ordered Defendant to remove/replace the contraband surveillance watch (CSW)
restraints. Indeed, Sgt. Johnson’s report unequivocally indicates that Sgt. Johnson would
not so testify.
Accordingly, Plaintiff’s Request for Obtaining Attendance of Unincarcerated Witness
at Docket 110 is DENIED.

9

Docket 85, p. 88.

CORRECTED ORDER DENYING MOTION AT DOCKET 110
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The Clerk of the Court is directed to return to Plaintiff any witness fees Plaintiff
submitted to the Court.
IT IS SO ORDERED this 29th day of January, 2016.

S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

CORRECTED ORDER DENYING MOTION AT DOCKET 110
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