King v. Deathriage et al

Filing 92

ORDER GRANTING PLAINTIFF'S MOTION FOR ATTENDANCE OF INCARCERATED WITNESS WHO AGREES TO TESTIFY VOLUNTARILY 90 signed by Magistrate Judge Stanley A. Boone on 5/11/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL STEVEN KING,

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Plaintiff,

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v.
S. DEATHRIAGE, et al.,

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Defendants.

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Case No.: 1:14-cv-00111-SAB (PC)
ORDER GRANTING PLAINTIFF’S MOTION FOR
ATTENDANCE OF INCARCERATED WITNESS
WHO AGREES TO TESTIFY VOLUNTARILY
(ECF No. 90)

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Plaintiff Michael Steven King is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. This case is set for a July 11, 2017 jury trial on Plaintiff’s claims

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against Defendants Deathriage, Martinez, and Briones for excessive force in violation of the Eighth

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Amendment. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of a United

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States Magistrate Judge. (ECF Nos. 5, 80); Local Rule 302.
Currently before the Court is Plaintiff’s renewed motion for the attendance of an incarcerated

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witness who agrees to testify voluntarily, filed May 5, 2017. (ECF No. 90.)

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I.

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BACKGROUND

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Previously, on January 9, 2017, Plaintiff moved for the attendance of several inmate witnesses,

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(ECF No. 52), which the Court denied following a hearing on March 23, 2017, (ECF No. 67). Plaintiff

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now renews his motion for the attendance of one inmate witness, Frizzell Bell (CDCR # V-98376,

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Kern Valley State Prison (“KVSP”)).

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II.

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LEGAL STANDARDS

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Reconsideration motions are committed to the discretion of the trial court. Rodgers v. Watt,

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722 F.2d 456, 460 (9th Cir. 1983) (en banc); Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.

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Cir. 1987). A party seeking reconsideration must set forth facts or law of a strongly convincing nature

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to induce the court to reverse a prior decision.

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Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds,

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828 F.2d 514 (9th Cir. 1987).

See, e.g., Kern-Tulare Water Dist. v. City of

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In determining whether to grant Plaintiff’s motions for the attendance of incarcerated

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witnesses, the Court considers the following factors: (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, (3) the expense of transportation and security, and (4) whether the suit can be stayed until

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the inmate is released without prejudice to the cause asserted. Wiggins v. County of Alameda, 717

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F.2d 466, 468 n.1 (9th Cir. 1983).

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III.

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DISCUSSION

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Here, the Court finds that Plaintiff has met his burden to provide sufficient additional facts and

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evidence to merit reconsideration in this case. Previously, the Court denied Plaintiff’s motion because

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he provided no declaration from himself or from inmate Bell that inmate Bell had any actual, first-

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hand knowledge of the events at issue.

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Plaintiff’s renewed motion is supported by a declaration signed under penalty of perjury by

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inmate Bell, in which inmate Bell discusses that he was housed in a cell near Plaintiff on the day in

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question, and witnessed out of the window from his cell door a group of correctional officers yelling at

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Plaintiff, and then slamming him on the ground, and beating Plaintiff for 10-20 minutes. Inmate Bell

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also declares that he heard some of what the officers yelled at Plaintiff, and saw Plaintiff being

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dragged away.

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Based on the foregoing declaration, the Court is satisfied that inmate Bell witnessed the

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incident at issue in this case, and his testimony will substantially further the resolution of this case.

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The Court has no information before it that inmate Bell would pose any exceptional security risk, or

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that transport and security are unduly burdensome, and inmate Bell is currently incarcerated at KVSP.

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The Court does not find that delaying this trial until inmate Bell’s release best serves the interests of

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justice, given the length of time this case has been pending, and because memories of the March 21,

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2013 events are likely to fade with time.

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Accordingly, the Court will grant Plaintiff’s renewed motion for the attendance of incarcerated

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witness Frizzell Bell. Plaintiff is advised that the Court will issue a Writ of Habeas Corpus Ad

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Testificandum for Plaintiff and inmate Bell’s attendance at the trial in due course, and a motion for

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such order is not necessary.

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IV.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for the attendance of inmate witness Frizzell Bell, filed May 5, 2017
(ECF No. 90) is GRANTED; and

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The Court will issue the necessary transportation orders for Plaintiff and inmate Bell in
due course.

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IT IS SO ORDERED.

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Dated:

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May 11, 2017
UNITED STATES MAGISTRATE JUDGE

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