Mix v. King

Filing 54

ORDER GRANTING 51 Plaintiff's Motion for Attendance of Incarcerated Witnesses signed by Magistrate Judge Michael J. Seng on 2/12/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT D. MIX,

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Plaintiff,

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v.
AUDREY KING, et al.,

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CASE NO. 1:13-cv-00823-AWI-MJS (PC)
ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED WITNESSES
(ECF No. 51)

Defendants.

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I.

INTRODUCTION

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Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendants Cunningham and Saloum on Plaintiff’s Fourteenth Amendment failure to

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protect claims. The claims arise from allegations that Defendants failed to protect

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Plaintiff from an assault by fellow detainee William Jackson.

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Before the Court is Plaintiff’s February 1, 2015 motion for the attendance of

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incarcerated witnesses at trial. Defendants filed no opposition and the time for doing so

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has passed.

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II.

PLAINTIFF’S MOTION

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Plaintiff seeks to have detainees Sam Consiglio, Scott Flint, and Kenneth

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D’Agostini made available to testify at trial. He attests that all three witnesses informed

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him on January 1, 2016 that they are willing to testify voluntarily. He states that each of

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the proposed witnesses “has firsthand, eyewitness knowledge of events that transpired

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leading up to the assault of Plaintiff’s person and have materials facts that will be

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presented at trial.” Plaintiff provides no further detail regarding the proposed testimony,

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but refers the Court to sworn declarations previously submitted by each of the proposed

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witnesses.

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The Court presumes that Plaintiff is referring to declarations submitted along with

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his objections to the findings and recommendations to grant Defendants’ motion for

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summary judgment. (ECF No. 31.) Therein, Plaintiff’s proposed witnesses attested as

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follows.

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Sam Consiglio states that he witnessed threats and assaults by Jackson on fellow

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detainees. Consiglio spoke with staff and the Unit Advisory Council regarding his

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concerns about Jackson without result. On March 24, 2013, he wrote to Audrey King,

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Executive Director of Coalinga State Hospital, to warn her about Jackson. King did not

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respond until June 5, 2013. In the meantime, on April 27, 2013, Jackson attacked

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Plaintiff in the dorm Plaintiff and Consiglio shared. Consiglio did not see the attack but

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heard the altercation and found Plaintiff injured. The next day, Consiglio spoke with

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Defendants, who told Consiglio they were aware of his prior complaints about Jackson.

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Flint states he observed Jackson attacking fellow patients and also heard other

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patients complaining about Jackson. He told the patients to write up their complaints; all

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but Consiglio refused. From February through April 2013, Flint relayed concerns about

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Jackson to unit staff. These concerns were raised at the Unit Advisory Council and Civil

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Detainees’ Advisory Council. Flint understood that the unit psychologists (i.e.

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Defendants) were made aware of his concerns and that they were being dealt with. Flint

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was on the unit during the April 27, 2013 attack on Plaintiff, heard the commotion, and

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saw Plaintiff’s injuries.

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D’Agostini states that Jackson threatened him on February 20, 2013, as well as

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on other occasions. D’Agostini told staff about the threats and also brought it up during

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his team meeting with no result.

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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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The proposed witnesses have information relevant to the determination of

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whether Defendants knew of a threat to Plaintiff’s safety from Jackson. Indeed, the

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declarations discussed herein were relied on by the District Judge in concluding that

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disputed issues of fact precluded summary judgment. Their testimony may be critical to

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the jury’s determination of whether Defendants had such knowledge, and therefore will

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substantially further resolution of the case.

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V.

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CONCLUSION
Based on the foregoing, Plaintiff has made a sufficient showing to warrant making

these witnesses available to testify at trial.

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Accordingly, his motion is HEREBY GRANTED. The Court will separately issue

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Writs of Habeas Corpus ad Testificandum for Detainees Consiglio, Fleet, and D’Agostini.

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IT IS SO ORDERED.
Dated:

February 12, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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