Garcia v. Juarez

Filing 196

ORDER GRANTING Plaintiff's 130 Motion for Attendence of Incarcerated Witnesses Unwilling to Testify Voluntarily, signed by Magistrate Judge Erica P. Grosjean on 08/15/17. (Martin-Gill, S)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ROBERTO M. GARCIA, JR., 8 Plaintiff, 9 10 v. MATTHEW M. JUAREZ, JR., 11 Defendant. Case No. 1:12-cv-00750-AWI-EPG (PC) ORDER GRANTING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES UNWILLING TO TESTIFY VOLUNTARILY (ECF NO. 130) 12 13 I. BACKGROUND 14 Roberto M. Garcia, Jr. (“Plaintiff”) is a former state prisoner proceeding in forma 15 pauperis with this civil rights action under 42 U.S.C. § 1983. Plaintiff filed the complaint 16 commencing this action on May 8, 2012. (ECF No. 1). This action now proceeds on Plaintiff’s 17 First Amended Complaint (ECF No. 11) against defendant Juarez for use of excessive force in 18 violation of the Eighth Amendment (ECF No. 19). 19 On January 11, 2017, Plaintiff filed a motion for the attendance of incarcerated 20 witnesses unwilling to testify voluntarily (“the Motion”). (ECF No. 130). No objections were 21 filed. On July 12, 2017, the Court issued an order granting the Motion. (ECF No. 180). On 22 July 28, 2017, the Court vacated the order granting the Motion because Defendant was not 23 given a deadline to respond to the Motion, and allowed Defendant to file an opposition. (ECF 24 No. 184). On August 4, 2017, Defendant filed his opposition to the Motion. (ECF No. 185). 25 On August 11, 2017, Plaintiff filed his reply. (ECF No. 193). The Motion is now before the 26 Court. 27 /// 28 /// 1 1 II. ATTENDANCE OF INMATE WITNESSES AT TRIAL 2 On October 20, 2016, the Court issued a scheduling order which, among other things, 3 advised Plaintiff of the requirements for bringing inmate witnesses to trial. (ECF No. 116, pgs. 4 2-3). Plaintiff was informed that the Court must issue an order before Plaintiff’s incarcerated 5 witnesses can come to court to testify. (Id.). The Court also informed Plaintiff that it will not 6 issue such an order unless it is satisfied that the prospective witness has actual knowledge of 7 relevant facts. (Id.). Plaintiff was advised that he must file a motion for attendance of 8 incarcerated witnesses, stating the name, address, and prison identification number of each such 9 witness, accompanied by declarations by Plaintiff or the witnesses, showing that each witness 10 has actual knowledge of relevant facts. (Id.). Plaintiff was informed that the declaration must 11 show that the prospective witness was an eyewitness or ear-witness to relevant facts, and must 12 be specific about the incident at issue in this case, including when and where it occurred, who 13 was present, and how the prospective witness happened to be in a position to see or hear what 14 occurred at the time it occurred. (Id.). 15 III. PLAINTIFF’S MOTION 16 Plaintiff seeks to bring two inmate witnesses to trial who are unwilling to testify 17 voluntarily: (1) Garrett Quon and (2) Eddie Nevarez. Plaintiff has provided the names, CDCR 18 numbers, and locations of both prospective witnesses. (ECF No. 130, p. 4). Plaintiff also 19 submitted statements from each prospective witness. (ECF No. 130-1, p. 2 & 4). Both Mr. 20 Quon and Mr. Nevarez state that they were present when the excessive force incident allegedly 21 occurred, and explain what they saw and heard. (Id.). 22 Defendant opposes the Motion on the ground that Plaintiff did not submit the 23 appropriate declaration(s) in support of the motion, and that the statements provided by both 24 prospective witnesses were not authenticated. (ECF No. 185, p. 2). Defendant also filed 25 several evidentiary objections. (ECF No. 185-1, pgs. 1-2). 26 IV. DISCUSSION 27 Plaintiff has submitted the name, address, and prison identification number of both 28 prospective witnesses. Additionally, Plaintiff has provided a statement from both prospective 2 1 witnesses. 2 Defendant is correct that neither of these statements satisfies the requirements of 28 3 U.S.C. § 1746(2), and that the prospective witnesses’ statements do not strictly comply with the 4 requirements laid out in the Court’s scheduling order. “The determination whether to issue a 5 writ of habeas corpus ad testificandum rests within the sound discretion of the district court.” 6 Cummings v. Adams, 2006 U.S. Dist. LEXIS 9381, *6, 2006 WL 449095 (E.D. Cal. Feb. 17, 7 2006). Accord Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Here, the Court 8 believes that it has sufficient information to make a determination of the relevance of the 9 witnesses. And, after conducting a “cost-benefit analysis regarding whether the inmate[s] 10 should come to court,” Cummings v. Adams, 2006 U.S. Dist. LEXIS 9381, *7, 2006 WL 11 449095 (E.D. Cal. Feb. 17, 2006), the Court has determined that both prospective witnesses 12 should be allowed to come to court. Each witness states that he was present when the alleged 13 excessive force incident occurred, and explains what he saw. For the purposes of the Motion, 14 this is enough to show that both prospective witnesses have actual knowledge of relevant facts. 15 Additionally, no argument has been made that transporting these witnesses would be too 16 dangerous or too costly. Accordingly, the Court finds that both prospective witnesses should 17 come to Court to offer testimony.1 18 V. ORDER 19 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for the 20 attendance of incarcerated witnesses unwilling to testify voluntarily, filed on January 11, 2017, 21 is GRANTED. 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 28 1 The Court is not precluding any objections to their testimony, which will be addressed by the trial judge. 3 1 2 Approximately one month before the trial the Court will issue writs of habeas corpus ad testificandum, ordering that the witnesses be transported to the court on the date(s) of the trial.2 3 4 5 IT IS SO ORDERED. Dated: August 15, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 28 The Court notes that it is willing to accommodate the appearance of inmate witnesses via video conference. 4

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