Franks v. Stanislaus County Sheriff's Department

Filing 65

ORDER granting 62 Motion for attendance of incarcerated witness at trial signed by Magistrate Judge Erica P. Grosjean on 3/23/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOM MARK FRANKS

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Plaintiff,
v.
SERGEANT KIRK, et al.,
Defendants.

Case No. 1:15-cv-00401-EPG (PC)
ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED WITNESS AT
TRIAL
(ECF No. 62)

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Plaintiff Tom Mark Franks is proceeding pro se and in forma pauperis in this action

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alleging violations of 42 U.S.C. § 1983. This case is proceeding on Plaintiff’s Eighth Amendment

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claim for failure to protect against Defendants Kirk, Wygt, and Mauldin. (ECF No. 17).

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Plaintiff alleges that, one and a half years before October 25, 2014, inmate Joe Dixon

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(“Dixon”) pulled a razor-knife on him, and the two were separated for safety. Three weeks prior to

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October 25, 2014, Plaintiff was detained at Public Safety Center in Modesto, California. He told

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Defendant Deputy Wygt about the prior knife incident, and asked not to be in the same cell with

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Dixon. Plaintiff also wrote to Defendant Sergeant Kirk and asked for a change of cell

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classification. The requests were intercepted by Defendant Deputy Mauldin. Despite these

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notifications, Plaintiff was housed with Dixon. On October 25, 2014, Dixon attacked Plaintiff and

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cut him several times. (ECF No. 16).

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On February 12, 2018, the Court denied Defendants’ motion for summary judgment in this

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action. (ECF No. 53). A trial is now scheduled in this action for June 19, 2018. (ECF No. 31). The

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Court directed the parties to serve and file a motion for the attendance at trial of any incarcerated

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witness no later than March 21, 2018. (ECF No. 56).

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On March 21, 2018, Plaintiff filed his motion to compel the attendance of Joe Dixon

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(CDCR #AX4625) at trial. (ECF No. 62). Plaintiff argues that Joe Dixon is a key witness to the

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case as he is a percipient witness to the events giving rise to this action. Id. Plaintiff also argues that

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Dixon can testify as to the events during and surrounding his housing reclassification in October

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2014, and is likely to have knowledge of the disputed facts in this case. Id.

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On March 22, 2018, Defendants filed a statement of non-opposition to the motion to
compel. (ECF No. 64).

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“The determination whether to issue a writ of habeas corpus ad testificandum rests within

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the sound discretion of the district court.” Cummings v. Adams, 2006 U.S. Dist. LEXIS 9381, *6,

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2006 WL 449095 (E.D. Cal. Feb. 17, 2006); accord Walker v. Sumner, 14 F.3d 1415, 1422 (9th

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Cir. 1994). Here, the testimony of the incarcerated witness is central to resolving the dispute in this

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action. Thus, a “cost-benefit analysis regarding whether the inmate should come to court,”

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Cummings, 2006 U.S. Dist. LEXIS 9381 at *7, leaves the Court with one conclusion: Joe Dixon

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should be allowed to come to court.

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Accordingly, IT IS HEREBY ORDERED that the motion for the attendance of an

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incarcerated witness, (ECF No. 62), is granted. Approximately one month before the trial the Court

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will issue a writ of habeas corpus ad testificandum, ordering that Joe Dixon (CDCR #AX4625),

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who is currently housed at Mule Creek State Prison, 4001 Highway 104, Ione CA 95640, be

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transported to the court on the date(s) of the trial.

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IT IS SO ORDERED.
Dated:

March 23, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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