Warner v. Cate et al
Filing
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ORDER Striking Plaintiff's First 154 Motion for the Attendance of Incarcerated Witnesses; ORDER Granting in Part Plaintiff's Second 181 Motion for the Attendance of Incarcerated Witnesses signed by Magistrate Judge Michael J. Seng on 07/25/2017. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EARL WARNER,
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Plaintiff,
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v.
M. CATE, et al.,
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Defendants.
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CASE NO. 1:12-cv-01146-MJS (PC)
ORDER STRIKING PLAINTIFF’S FIRST
MOTION FOR THE ATTENDANCE OF
INCARCERATED WITNESSES (ECF NO.
154)
ORDER GRANTING IN PART
PLAINTIFF’S SECOND MOTION FOR
THE ATTENDANCE OF INCARCERATED
WITNESSES
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(ECF No. 181)
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CLERK TO STRIKE ECF NO. 154
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I.
Introduction
Plaintiff is a state prisoner proceeding with counsel and in forma pauperis in this
civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against
Defendants Walker, Prokop, Spralding, Fellows, and Davis (formerly McGaha) on
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Plaintiff’s Eighth Amendment claim that Defendants intentionally housed Plaintiff in the
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same unit as his enemy knowing that doing so posed a serious threat to Plaintiff’s safety.
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On January 9, 2017, while Plaintiff still proceeded pro se, he filed a motion for the
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attendance of incarcerated witnesses at trial. (ECF No. 154.) Plaintiff also propounded a
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request for the attendance of incarcerated witnesses on January 4, 2017. (ECF No. 151
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at 4-9.) On January 20, 2017, the Court appointed counsel. (ECF No. 161.) On June 2,
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2017 counsel filed a new motion for attendance of incarcerated witnesses at trial and
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asked to withdraw Plaintiff’s prior requests. (ECF No. 181.) Accordingly, the request in
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ECF No. 151 will be disregarded, and the motion at ECF No. 154 stricken.
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Defendants filed an opposition to the instant motion. (ECF No. 190.) The matter
stands ready for adjudication.
II.
Plaintiff’s Motion
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Plaintiff seeks to have four inmates made available to testify at trial: (1) Paul
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Salcido; (2) Robert Siordia; (3) Van-Albert Siegrist; and (4) Chad Galvin. He attests that
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Salcido is willing to testify voluntarily, Siordia is unwilling to testify voluntarily, and
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Siegrist and Galvin have not indicated whether they are willing to testify voluntarily or
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involuntarily.
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Plaintiff states that Siordia has first-hand knowledge of relevant facts and events.
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Salcido indicates he too has first-hand knowledge of relevant events (Decl. of P. Salcido
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(ECF No. 181-2.)) Siegrist and Galvin each possess knowledge of Siordia’s well-known
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gang affiliation and propensity for violence, as well as intimate knowledge of the prison
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gang culture. (Decl. of V. Siegrist (ECF No. 181-4); Decl. of C. Galvin (ECF No. 181-5.))
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Defendants oppose the motion as to inmates Salcido, Siegrist, and Galvin on the
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grounds that these inmates do not possess actual knowledge of the relevant events in
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this case and their testimony will not substantially further the resolution of this case.
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Specifically, none of these inmates witnessed the January 19, 2011 classification
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committee hearing during which Defendants allegedly disregarded Plaintiff’s enemy
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concerns and assigned Plaintiff to the same housing unit as Siordia. Defendants
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maintain that any information these inmates provide regarding Siordia’s gang affiliations
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and reputation for violence would be merely cumulative of Plaintiff and inmate Siordia’s
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own potential testimony at trial.
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III.
Legal Standard
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The Court has discretion to grant a motion for the attendance of incarcerated
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witnesses if the moving party has shown the witnesses have relevant information and
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the Court determines the witnesses’ presence will substantially further the resolution of
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the case. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983).
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IV.
Discussion
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Defendants do not object to Plaintiff’s request to call inmate Siordia as a witness.
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It appears inmate Siordia could offer relevant information regarding Plaintiff’s failure to
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protect claim. Plaintiff’s motion will be granted as to Siordia.
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Inmate Salcido avers that he was housed on the same unit as Plaintiff on January
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19 and 20, 2011. He states that he witnessed Siordia be removed from his cell on
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January 19, 2011, on instructions to go to the facility program office. On his return
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Siordia told Salcido that Plaintiff had claimed Siordia warned Plaintiff to stay off of the
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yard. Salcido also witnessed custody officers escort Plaintiff and his belongings to the
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unit shortly after Siordia’s return. He overheard the officers say Plaintiff tried to refuse
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the cell move to avoid Siordia. Salcido also says he delivered a “kite” (a note) to Siordia
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on Plaintiff’s behalf. Over the next two days, he witnessed a number of inmates,
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including Siordia’s cellmate, walking past Plaintiff’s cell. Salcido saw Plaintiff refuse to
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leave his cell for meals and ultimately cut his own wrist.
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Much of what Salcido plans to testify to may be hearsay, but he seems to have
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relevant information regarding Siordia and his associates and the actions of staff and
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inmates. To the extent Defendants believe Salcido’s testimony might be cumulative of
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Siordia’s, Siordia apparently is an uncooperative witness. The Court will grant Plaintiff’s
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motion as to Salcido.
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However, the Court finds that Siegrist and Galvin are unlikely to provide relevant
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information not otherwise available through Plaintiff or Salcido. Neither has personal
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knowledge of the events of January 19 or 20, 2011, and each simply plans to testify only
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as to as to the culture of gangs and violence at CDCR institutions. Plaintiff may testify to
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these facts himself. Accordingly, Plaintiff’s motion as to inmates Siegrist and Galvin will
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be denied, but denied without prejudice to its renewal if the defense challenges Plaintiff’s
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and Salcido’s testimony in those regards and the Court determines it would be helpful to
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take additional such testimony.
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V.
Conclusion
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Based on the foregoing, Plaintiff has made a sufficient showing to warrant making
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inmates Siordia and Salcido available to testify at trial. He has not met his burden as to
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inmates Siegrist and Galvin.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s first motion for the attendance of incarcerated witnesses at trial (ECF
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No. 154) is STRICKEN from the record;
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2. Plaintiff’s second motion for the attendance of incarcerated witnesses (ECF
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No. 181) is GRANTED IN PART, consistent with this order. At the appropriate
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time, the Court will issue separate writs of habeas corpus ad testificandum to
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secure Siordia’s and Salcido’s attendance.
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IT IS SO ORDERED.
Dated:
July 25, 2017
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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