Reyes v. Flores et al

Filing 82

ORDER on Plaintiff's 76 Motions for Witnesses, signed by Magistrate Judge Jennifer L. Thurston on 7/28/19. Thirty Day Deadline. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-00586-DAD-JLT (PC)

ABEL P. REYES,
Plaintiff,

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v.

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FLORES,

ORDER ON PLAINTIFF’S MOTIONS FOR
WITNESSES
(Docs. 75, 76.)

Defendant.

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30-DAY DEADLINE

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This action is scheduled for trial commencing on October 29, 2019, in front of the

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Honorable Dale A. Drozd. Plaintiff seeks to have one incarcerated witness transported to testify

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at trial and 15 unincarcerated witnesses subpoenaed. The deadline has passed for Defendant’s

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opposition has passed and none has been filed. The motions are deemed submitted. L.R. 230(l).

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As discussed in greater detail below, Plaintiff’s motion to have inmate (“IM”) Johnny Quezada,

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CDCR # V42893, transported to testify at the trial in this action, is GRANTED and subpoenas

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will issue for the United States Marshall service if Plaintiff timely submits money orders for the

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unincarcerated witness’ fees and mileage as outlined below.

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I.

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Plaintiff’s Allegations
Plaintiff proceeds on allegations that, following prostate (“TURP”) surgery, he was

discharged to the ACH at CSP-Cor on January 23, 2014 with a prescription for medications and
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directions from the surgeon for Plaintiff to report to a physician or emergency room if his

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symptoms returned or worsened. (Doc. 1, p. 16-17.)

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Plaintiff next alleges that, on January 26, 2014, at approximately 7:00 a.m., he was pushed

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in a wheelchair by ADA-worker, IM Quezada, to the clinic to pick up his morning medications at

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which time he informed Defendant that he was in severe pain in his bladder and kidneys and that

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he was leaking blood from his penis. (Id., p. 18.) Defendant responded that it was not a medical

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emergency, that the red on his boxers was not blood but Kool-Aid, and told him to submit a

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health care services request form to be seen. (Id.)

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IM Quezada wheeled Plaintiff back to his building where he and the person pushing his

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wheelchair informed C/O Huewe and the control booth officer that he was in pain and that

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medical staff were not responsive, to which the control booth officer indicated that he would let

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Plaintiff go back to medical at noon. (Id.) Around 11:30 a.m., IM Quezada wheeled Plaintiff

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back to the clinic where he was again seen by Defendant and told him of his continuing pain as

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well as that he was unable to urinate, had thick blood clots come out of his penis, and that he had

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just had surgery and needed medical attention. (Id., p. 19.) Defendant ignored Plaintiff’s pleas.

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(Id.) LVN Hamilton was also present for this exchange but did nothing. (Id.)

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When IM Quezada and Plaintiff arrived back at Plaintiff’s building they again relayed

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what happened to the control booth officer and C/O Huewe who asked if Plaintiff wanted them to

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hit the alarm to which Plaintiff responded in the affirmative. (Id.) LVN Hamilton and Defendant

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responded to the alarm and Defendant again stated that it was Kool-Aid, not blood on Plaintiff’s

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boxers and told custody staff that Plaintiff could go back to his cell and wait to see the nurse the

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next day. (Id., pp. 19-20.) C/O Huewe escorted Plaintiff back to his cell and Plaintiff told him

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that he was in severe pain, dripping blood clots from his penis, and was unable to urinate, but C/O

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Huewe responded that medical had already seen Plaintiff, so there was nothing more he could do.

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(Id., p. 20.)

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On third watch, Plaintiff reported his problems to other floor staff officers (not named as

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defendants) who let him call his mother; she called the hospital where Plaintiff’s surgery was

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performed. (Id., p. 21.) At approximately 3:45 p.m., Plaintiff was seen at the clinic by John Doe
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RN, whom Plaintiff told of his surgery, severe pain, and that Plaintiff had used a catheter trying to

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release his urine, but only blood clots came out. (Id.) John Doe RN looked and told Plaintiff he

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did not see any blood on his penis and told Plaintiff to see a nurse the next day. (Id.) When

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Plaintiff protested and asked John Doe RN “Why not do something now?” John Doe RN simply

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responded, “I’m done.” (Id.) When he returned to his cell, Plaintiff again called his mother and

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eventually a nurse from the hospital called CSP-Cor and told medical staff that Plaintiff was

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having a medical emergency which resulted in his return to the hospital at approximately 10:00

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that evening. (Id., pp. 21-22.)

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II.

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Discussion and Analysis
In determining whether to grant Plaintiff's motions 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 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

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

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

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(9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience

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and expense of transporting inmate witness outweighed any benefit he could provide where the

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importance of the witness’s testimony could not be determined), abrogated on other grounds by

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Sandin v. Conner, 515 U.S. 472 (1995).

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A.

Incarcerated Witnesses

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Plaintiff seeks to have IM Quezada, his ADA-worker, transported to testify at the trial of

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this action. Plaintiff must show that IM Quezada’s anticipated testimony will substantially

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further resolution of the case, which as stated in the Second Scheduling Order, requires showing

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IM Quezada is willing to testify and has actual knowledge of relevant facts. (Doc. 59, pp. 2-3.)

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Plaintiff submitted an affidavit from IM Quezada which confirms that IM Quezada is willing to

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testify and was present for the encounters between Plaintiff and Defendant which form the basis

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of this action. (Doc. 76, pp. 6-7.) IM Quezada’s presence will substantially further the resolution

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of the case and Plaintiff’s motion as to this witness will be granted.
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B.

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Plaintiff seeks to subpoena 15 unincarcerated witnesses for trial. As stated in the Second

Unincarcerated Witnesses

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Scheduling Order, (Doc. 59), Plaintiff must deposit a money order payable to each witness for the

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full amount of fees and mileage for that witnesses before a subpoena will issue. The witness fee

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is $40.00 per day1 and mileage is set at $0.58 per mile.2 Because no statute authorizes the use of

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public funds for these expenses in civil cases, the tendering of witness fees and travel expenses is

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required even though Plaintiff was granted leave to proceed in forma pauperis. If Plaintiff fails to

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submit the required money orders, no subpoenas will issue and these witnesses will not be served

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by the United States Marshal. If Plaintiff decides he only desires some, but not all, of the below

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witnesses for trial, he only need submit money orders in the sums delineated below that

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correspond with the witness(es) he desires to be subpoenaed. It is Plaintiff’s responsibility to

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correctly spell and identify the individuals for service by the United States Marshal.
1.

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Plaintiff seeks to subpoena the following individuals whose address he lists as CSP-Cor,

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CSP-Corcoran

4001 King Avenue, Corcoran, CA 93212:

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1.

B. Whitfield, (“LVN”), Licensed Vocational Nurse

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G. Andrade, (“SRN II”), Supervising Registered Nurse II

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S. Macelvaine, (“SRN III”), Supervising Registered Nurse III

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Teresa Macias, (“CEO”), Chief Executive Officer

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Alford, Correctional Officer 2/W

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J. Huewe, Correctional Officer 2/W

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E. Cortez, Correctional Officer 3/W

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Julian Kim, “Medical Doctor”, (CTC)

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The round-trip mileage from CSP-Cor to the United States District Court in Fresno, CA is 110

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miles. At $0.58/mile, the total mileage fee for each of the above witnesses is $63.80. Each of

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these individuals is also entitled to a $40.00 daily witness fee. Therefore, Plaintiff must submit 8

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See 28 U.S.C. § 1821.
See http://www.gsa.gov/portal/content/100715.

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separate money orders in the amount of $103.80, payable to each of these individuals from CSP-

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Cor before they may be subpoenaed for trial.

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2.

Delano Regional Hospital

Plaintiff seeks to subpoena the following individuals whose address he lists as Delano
Regional Hospital, 1401 Garces Highway, Delano, CA 93215:

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Miss Campbell, (“RN”), Registered Nurse

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2.

Anthony H. Horan, “Urologist Surgeon”

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The round-trip mileage from Delano Regional Hospital to the United States District Court in

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Fresno, CA is 156 miles. At $0.58/mile, the total mileage fee for each of these witnesses is

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$90.48. The witnesses are also entitled to a $40.00 daily witness fee. Therefore, Plaintiff must

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submit 2 separate money orders in the amount of $130.48, payable to each of individuals from

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Delano Regional Hospital before they may be subpoenaed for trial.
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Mercy Hospital

Plaintiff seeks to subpoena the following individuals whose address he lists as Mercy
Hospital, 2215 Truxtun Ave., Bakersfield, CA 93301:

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Jaber Noor, “Medical Doctor”, (CHW Central California)

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2.

Mushtaq Ahmed, “Medical Doctor”

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3.

Snyder, Alissa K. “MD

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The round-trip mileage from Mercy Hospital to the United States District Court in Fresno, CA is

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218 miles. At $0.58/mile, the total mileage fee for each of these witnesses is $126.44. The

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witnesses are also entitled to a $40.00 daily witness fee. Therefore, Plaintiff must submit 3

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separate money orders in the amount of $166.44, payable to each of individuals from Mercy

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Hospital before they may be subpoenaed for trial.

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4.

Twin Cities Community Hospital

Plaintiff seeks to subpoena “Perkin Hugh, ‘Medical Doctor,’” whose address he lists as

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Twin Cities Community Hospital, 1100 Las Tables Rd., Templeton, CA 93465. The round-trip

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mileage from Twin Cities Community Hospital to the United States District Court in Fresno, CA

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is 232 miles. At $0.58/mile, the total mileage fee for this witness is $174.56. The witness is also
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entitled to a $40.00 daily witness fee. Therefore, Plaintiff must submit a money order in the

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amount of $174.56, payable to this witness before he will be subpoenaed for trial.

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San Joaquin Community Hospital

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Plaintiff seeks to subpoena “Ziomek, M.D., John J. ED, Physician” whose address he lists

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as San Joaquin Community Hospital, 2615 Chester Ave., Bakersfield, CA 93301. The round-trip

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mileage from San Joaquin Community Hospital to the United States District Court in Fresno, CA

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is 218 miles. At $0.58/mile, the total mileage fee for this witness is $126.44. The witness is also

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entitled to a $40.00 daily witness fee. Therefore, Plaintiff must submit a money order in the

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amount of $166.44, payable to this witness before he will be subpoenaed for trial.

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III.

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

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Johnny Quezada, CDCR # V42893, available to testify at trial. Accordingly, his motion for the

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attendance of incarcerated witnesses is GRANTED. At the appropriate time, the Court will issue

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a separate writ of habeas corpus ad testificandum to secure Mr. Quezada’s attendance.

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Additionally, if Plaintiff wishes to subpoena the unincarcerated witnesses, he must submit money

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orders in the amounts stated above within 30 days of the date of service of this order.

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IT IS SO ORDERED.
Dated:

July 28, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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