Randolph v. Nix et al

Filing 122

ORDER GRANTING 112 Motion for the Attendance of Incarcerated Witness at Trial signed by Magistrate Judge Michael J. Seng on 6/6/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COLIN M. RANDOLPH,

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Plaintiff,

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v.
B. NIX, et al.,

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CASE NO. 1:12-cv-00392-LJO-MJS (PC)
ORDER GRANTING MOTION FOR THE
ATTENDANCE OF INCARCERATED
WITNESS AT TRIAL
(ECF No. 112)

Defendants.

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I.

PROCEDURAL HISTORY

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Plaintiff Colin M. Randolph, a state prisoner proceeding in forma pauperis, filed

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this this civil rights action pursuant to 42 U.S.C. § 1983 on March 15, 2012. On February

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17, 2016, counsel was appointed to represent Plaintiff. (ECF No. 99.) The action

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proceeds on Plaintiff’s second amended complaint against Defendant J. Akanno for

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violating Plaintiff’s right to adequate medical care under the Eighth Amendment of the

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United States Constitution. The events at issue occurred at Kern Valley State Prison in

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Delano, California, and arise out of Defendant Akanno’s alleged delay in providing

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Plaintiff with a lower bunk as an accommodation for his vision and mobility impairments.

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Trial is set for August 23, 2016 before U.S. District Judge Lawrence J. O’Neill.

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Before the Court is Plaintiff’s motion for the attendance of an incarcerated witness

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at trial. (ECF No. 112.) Defendant filed a response (ECF No. 116), and Plaintiff filed a

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reply (ECF No. 119). The matter is submitted.

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II.

ARGUMENTS

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Plaintiff seeks to secure the attendance of Dupriest Jermaine Green, CDCR

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Number T-12804. Green allegedly was Plaintiff’s cell mate during the time Plaintiff was

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under Defendant’s care. He witnessed Plaintiff’s fall from an upper bunk, injuries

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stemming therefrom, and the effect of those injuries on Plaintiff’s life. Green previously

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provided a declaration regarding Plaintiff’s fall and injuries; however, he has not been

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contacted regarding his willingness to provide testimony at trial. He is the only

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eyewitness to Plaintiff’s injury.

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Defendant does not object to Green’s testimony but asks that Green testify

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through videoconference from Kern Valley State Prison. Defendant points out that Green

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is serving a sentence of life with the possibility of parole for the offenses of robbery and

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assault with a semi-automatic weapon. He has incurred eight disciplinary violations in

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the past five years resulting in loss of credits. Furthermore, permitting Green to testify

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through videoconference would alleviate the costs of transporting him to trial.

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Plaintiff responds that Green should be permitted to testify in-person at trial, and

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the benefits of doing so greatly outweigh security risks and costs. He points out that

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Defendant has not shown that Green’s disciplinary proceedings involved acts of

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violence. Moreover, Green’s convictions are more than fifteen years old and the costs of

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transporting him to Fresno for trial are relatively low.

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III.

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LEGAL STANDARD
The Court considers the following factors in determining whether an inmate

should be permitted to attend trial in person:

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(1) whether the prisoner’s presence will substantially further
the resolution of the case; (2) security risks presented by the
prisoner’s presence; (3) the expense of the prisoner’s
transportation and safekeeping; and (4) whether the suit can
be stayed until the prisoner is released without prejudice to
the cause asserted.[1]

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Wiggins v. Alameda Cnty., 717 F.2d 466, 468 n.1 (9th Cir.1983) (citation omitted).

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The Court has no information regarding Mr. Green’s release date and thus this factor is not considered.

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IV.

Here, as to the first factor, there is no dispute that Green’s testimony is relevant to

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DISCUSSION

this case.

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As to the second factor, security risks are inherent in the presence of any

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prisoner in Court. The Court notes that violent offenders present in Court on a regular

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basis, and regularly do so without incident. The question, then, is whether Mr. Green

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presents a heightened security risk beyond the mere fact that he is a prisoner. Foster v.

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Enenmoh, No. 1:08-cv-01849-LJO-SKO-PC, 2013 WL 6799177 at *2 (E.D. Cal.

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December 20, 2013). Mr. Green’s conviction is more than fifteen years old and the

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nature of his disciplinary offenses is unknown. The Court does not find sufficient basis to

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conclude that Mr. Green presents such an excessive risk as to require deviation from the

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norm of in-person testimony. See id.
Finally, Mr. Green is incarcerated at a prison “close enough to the courthouse that

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[his] transportation would present no exceptional issues from a cost standpoint.” Id.

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In-person witness testimony is the rule and creating an exception to that rule may

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only be permitted (1) for good cause, (2) in compelling circumstances, and (3) with

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appropriate safeguards. Fed. R. Civ. P. 43(a). For the reasons stated above, the Court

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does not find compelling circumstances weigh in favor of deviating from Rule 43

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V.

CONCLUSION AND ORDER

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Plaintiff’s motion for the attendance of incarcerated witness is HEREBY

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GRANTED. At the appropriate time, the Court will issue a writ of habeas corpus ad

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testificandum directing the production of Dupriest Jermaine Green, # T-12804, for trial.

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IT IS SO ORDERED.
Dated:

June 6, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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