Meredith v. Overley et al

Filing 101

ORDER Granting in Part Plaintiff's 85 Motion for Attendance of Incarcerated Witnesses at Trial signed by Magistrate Judge Michael J. Seng on 07/10/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE MEREDITH,

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Plaintiff,
v.
D. OVERLEY, et al.,

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Case No. 1:12-cv-00455-MJS (PC)
ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED WITNESSES AT TRIAL
(ECF No. 85)

Defendants.

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Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42
The action proceeds on Plaintiff’s Eighth Amendment conditions of

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U.S.C. § 1983.

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confinement claim against Defendants Overley, Benevidez, and Gamboa. (ECF No. 9.)

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Before the Court is Plaintiff’s April 6, 2015 motion for the attendance of

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incarcerated witnesses at trial. (ECF No. 85.) Defendants have not filed an opposition or

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otherwise responded to the motion.
Plaintiff seeks the attendance of Howard Johnson, CDCR No. T-18201, and Paul
Sanders, CDCR No. C-66723, both of whom he indicates are willing to testify. Plaintiff
states that Johnson and Sanders are both incarcerated. However, Johnson noted in a
declaration dated May 22, 2014 that he expected to be paroled within a few months
(ECF No. 55, at 2), and the CDCR inmate locator does not show a Howard Johnson with
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the inmate number T-18201 currently in custody in California. The court assumes that

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Johnson is no longer incarcerated. The court will therefore address separately Plaintiff’s

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request for Johnson to testify and his request for Sanders to testify.

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I.

INCARCERATED WITNESS
The Court’s January 16, 2015 scheduling order (ECF No. 76) required Plaintiff to

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show that an incarcerated witness is willing to testify voluntarily in one of two ways: (1)

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through a sworn declaration by Plaintiff that the witness has informed Plaintiff he or she

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is willing to testify voluntarily, stating when and where the witness so advised Plaintiff; or

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(2) through a sworn declaration stating same by the witness him- or herself.
Plaintiff’s has signed and sworn under penalty of perjury that Sanders is willing to

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testify voluntarily, although it is not clear when Plaintiff last had contact with Sanders.

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Plaintiff does not state where and when Sanders informed Plaintiff of his willingness to

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testify. (ECF No. 85, at 3.)

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Despite Plaintiff’s technical noncompliance with the scheduling order, the Court

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maintains discretion to grant a motion for the attendance of incarcerated witnesses.

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Wiggins v. Alameda Cnty., 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Greene v.

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Prunty, 938 F.Supp. 637, 639-640 (S.D. Cal. 1996). Accordingly, the Court will proceed

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to the merits of Plaintiff’s motion.

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In determining whether to grant a motion for the attendance of incarcerated

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witnesses, the Court takes into consideration the following factors: (1) whether the

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inmate’s presence will substantially further the resolution of the case, (2) the security

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risks presented by the inmate’s presence, (3) the expense of transportation and security,

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and (4) whether the suit can be stayed until the inmate is released without prejudice to

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the cause asserted.1 Wiggins, 717 F.2d at 468 n. 1; Greene, 938 F.Supp. at 639-640;

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see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (district court did not

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abuse its discretion when it concluded the inconvenience and expense of transporting

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Since the Court has no information on the release date of inmate Sanders, the Court will not address this
factor.
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inmate witness outweighed any benefit he could provide where the importance of the

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

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Conner, 515 U.S. 472 (1995).
Here, Plaintiff’s declaration indicates that Sanders was an eyewitness to Plaintiff’s

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efforts to get released from his celland to inculpatory statements by Defendant

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Benevidez. (ECF No. 85, at 3.) Because Sanders can provide relevant testimony, the

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Court concludes that his presence will substantially further resolution of the case. There

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is nothing before the Court to indicate that Sanders presents a greater-than-average

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security risk. The CDCR Inmate Locator indicates that Sanders is presently housed at

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Corcoran State Prison which is located within an hour’s drive of this court, so it does not

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appear that his presence would involve extraordinary expense.

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In light of these factors, the potential that Sanders has changed his mind about

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testifying voluntarily does not warrant denial of Plaintiff’s motion. “There is plenty that a

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judge can do to encourage a witness’s testimony.” Barnett v. Norman, 782 F.3d 417, 423

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(9th Cir. 2015). Although such efforts may ultimately prove fruitless, the testimony of

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Sanders is important to Plaintiff’s case, and the Court concludes that Plaintiff must have

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the opportunity to attempt to elicit such testimony.
Therefore, the Court will grant Plaintiff’s motion for the attendance of Sanders and

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will issue a writ of habeas corpus ad testificandum for Sanders’ presence at trial.
II.

UNINCARCERATED WITNESS
Plaintiff seeks to present the testimony of Howard Johnson, who, as described

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above, appears to have been released from custody. Johnson declared in a signed,

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sworn declaration from May 2014 that “although I am paroling within a few months, I will

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make myself available for further statements, questioning, and testimony.” (ECF No. 55,

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at 2.) As the Court informed Plaintiff in the scheduling order, Plaintiff does not need

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Court permission or a court order to have an unincarcerated witness appear and testify,

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provided the witness is willing to do so voluntarily and Plaintiff has identified the witness

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in his Pretrial Statement. Here, both these requirements have been met. Thus, all that
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is necessary for Plaintiff to have Johnson testify is for Plaintiff to notify Johnson of the

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time and date of trial and arrange for his presence. It is Plaintiff’s sole responsibility to

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arrange for Johnson’s appearance at trial. To the extent that Plaintiff needs to contact

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Johnson directly and Johnson remains a parolee, Plaintiff must comply with CDCR

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regulations for communicating with him. Cal. Code Regs. tit. 15, § 3139.

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III.

CONCLUSION & ORDER
Plaintiff’s motion for the attendance of incarcerated witnesses (ECF No. 85) is

HEREBY GRANTED IN PART as follows:

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1) Plaintiff’s motion for the attendance of inmate Paul Sanders is GRANTED;

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2) The Court will issue writs of habeas corpus ad testificandum separately for
Sanders’ presence at trial; and

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3) Plaintiff has sole responsibility for arranging for Howard Johnson’s attendance

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at trial.

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IT IS SO ORDERED.
Dated:

July 10, 2015

/s/

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UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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