Kietty v. Walker et al

Filing 108

ORDER regarding 103 Motion for attendance of incarcerated witnesses at trial signed by Magistrate Judge Stanley A. Boone on 4/6/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HUSSEIN ALI KIETTY,

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Plaintiff,
v.
A. WALKER, et al.,
Defendants.

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Case No.: 1:13-cv-00312-SAB (PC)
ORDER REGARDING PLAINTIFF’S MOTION
FOR ATTENDANCE OF INCARCERATED
WITNESSES AT TRIAL
[ECF No. 103]

Plaintiff Hussein Ali Kietty is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the

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jurisdiction of the United States Magistrate Judge. Local Rule 302.

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Currently before the Court is Plaintiff’s amended motion for the attendance of incarcerated

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witnesses at trial, filed February 27, 2017. Defendants filed an opposition on March 21, 2017.

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Plaintiff did not file a reply, and the motion is deemed submitted for review without oral argument.

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Local Rule 230(l).

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I.

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DISCUSSION

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The uncertainty regarding whether or not the proposed witnesses are willing to testify

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voluntarily does not preclude this Court from ordering their transportation. “Both sides in a trial have

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the right to call witnesses, and the power to compel witness testimony is essential to our system of
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justice.” Barnett v. Norman, 782 F.3d 417, 422 (9th Cir. 2015). A judge cannot “allow a witness to

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refuse to testify because he would prefer not to answer a question.” Id. “The public’s interest in full

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disclosure and the fair administration of justice overrides concerns that testimony might be

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inconvenient, burdensome, or harmful to a witness’s social or economic status.” Id.

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Rather, in determining whether to grant Plaintiff’s motion for the attendance of his proposed

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witnesses, factors to be taken into consideration include (1) whether the inmate’s presence will

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substantially further the resolution of the case, (2) the security risks presented by the inmate’s

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presence, and (3) the expense of transportation and security, and (4) whether the suit can be stayed

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until the inmate is released without prejudice to the cause asserted. Wiggins v. County of Alameda,

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717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994)

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(district court did not abuse its discretion when it concluded the inconvenience and expense of

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transporting 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. Conner, 515

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U.S. 472 (1995).

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Plaintiff requests the attendance of following three inmate-witnesses: (1) P. Brimmer, CDCR

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#P35825 (presently incarcerated at Kern Valley State Prison [KVSP] in Delano, California); (2) W.

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Green, CDCR #P54091 (currently incarcerated at the Substance Abuse and Treatment Facility and

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State Prison, Corcoran [SATF-CSP]); and (3) R. Steven Edwards, CDCR #V13645 (currently

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incarcerated at SATF-CSP). Plaintiff states that the witnesses are willing to testify voluntarily. (Mot.

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at 1, ECF No. 103.) Plaintiff submits the declarations signed by inmates P. Brimmer and W. Green,

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but does not present a declaration by inmate R. Steven Edwards.

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This action is proceeding against Defendants Walker, Deathriage, and Silva for failure to

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protect, against Defendants Walker, Asotrga, Deathriage, Brumbaugh, Silva and Duty for excessive

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force, and against Defendants Deathriage and Silva for retaliation.

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1.

Inmates P. Brimmer and W. Green

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Plaintiff submits declarations signed by P. Bimmer and W. Green. Both inmate declarations

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indicate that they were housed at Pleasant Valley State Prison on the day in question, May 25, 2012,

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and observed the alleged use of excessive force upon Plaintiff by Defendants.
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Defendants submit that both declarations are written in the same handwriting and contain

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nearly identical statements regarding events of May 25, 2012. In addition, the declarations are limited

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to alleged conversations between each inmate and Plaintiff regarding injuries that Plaintiff had nearly

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two months after the incident in question took place.

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Defense counsel submits that that based on a brief phone call, these witnesses appear to have

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information that could possibly further Plaintiff’s case, but it is unclear if the information is based on

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their personal knowledge of the specific acts of misconduct alleged. (Mohmoud Decl. at ¶¶ 3-4.)

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Counsel submits that Mr. Green denied ever signing a declaration for this case. (Id. ¶ 5.) Counsel

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argues that “[t]he fact that both declarations are written in the same handwriting, and that at least one

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witness denies ever signing a declaration, puts in question the authenticity of the declarations and the

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viability of the information in them. Even assuming the declarations are authentic, the content of the

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declarations alone indicates that these witnesses allegedly saw injuries that appeared on Plaintiff’s face

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two months after the incident in question took place, and nothing more.” (Mot. at 3:20-24, ECF No.

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105.)

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Defendants also oppose Plaintiff’s motion on the ground that it is unclear whether witnesses

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Brimmer and Green will testify voluntarily. Counsel declares that both Mr. Brimmer and Green stated

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that they did not want to testify in court, and denied having any knowledge of an upcoming trial.

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(Mohmoud Decl. ¶ 6.) Defendants request that Plaintiff communicate with his prospective witnesses

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in order to clarify whether they are willing to testify and should be transported to the Court.

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Based on the declarations submitted by Plaintiff, the Court finds that inmates Brimmer and

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Green have testimony that will substantially further the resolution of this case and they should be

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transported to Court for trial. While the declarations themselves do not indicate whether the witnesses

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will appear voluntarily and counsel submits that both witnesses indicated they did not want to testify

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in court, such circumstances are not dispositive on whether they should be transported to court for trial

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proceedings. Plaintiff is entitled to an attempt at having these witnesses appear at trial and testify.

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This is particularly so given that inmates are not entitled to freely communicate with one another, and

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the ability of Plaintiff to contact and communicate to his inmate witnesses may not be feasible. Cal.

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Code Regs. tit. 15, § 3139.

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2.

Inmate R. Steven Edwards

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Plaintiff fails to submits a declaration by inmate R. Steven Edwards or a declaration by

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Plaintiff that this inmate witness has actual knowledge of facts that will substantially further the

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resolution of this case. In addition, the Court will not permit duplicative and cumulative testimony of

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the same testimony that is anticipated from Plaintiff and inmates Brimmer and Green. Fed. R. Evid.

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403; Wiggins, 717 F.3d at 468 n.1. Although defense counsel declares that Mr. Edwards stated he is

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willing to testify on Plaintiff’s behalf, there is insufficient information before the Court to demonstrate

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that inmate R. Steven Edwards has personal knowledge of relevant information about the specific

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incidents in question, and Plaintiff’s motion shall be denied.

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II.

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CONCLUSION AND ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Green, CDCR #P54091 is granted;

denied; and
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Plaintiff’s motion for the attendance of inmate R. Steven Edwards, CDCR #V13645, is

2.

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Plaintiff’s motion for the attendance of inmates P. Brimmer, CDCR #P35825 and W.

The Court will issue the necessary transportations orders for Plaintiff and inmates

Brimmer and Green in due course.

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IT IS SO ORDERED.

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Dated:

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April 6, 2017
UNITED STATES MAGISTRATE JUDGE

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