Corena v. Holland et al

Filing 83

ORDER Denying Plaintiff's 77 Motion for Attendance of Witnesses, signed by Magistrate Judge Erica P. Grosjean on 3/1/19. (Gonzalez, R)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7

JORGE CORENA,

8

Plaintiff,

9
10

v.
RODRIGUEZ, et al.,

11

Case No. 1:16-cv-01025-LJO-EPG (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
WITNESSES
(ECF NOS. 77 & 79)

Defendants.

12
13

I.

BACKGROUND

14

Jorge Corena (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

15

this civil rights action filed pursuant to 42 U.S.C. § 1983. On October 26, 2018, defendant

16

Rodriguez filed a motion for summary judgment on the ground that Plaintiff failed to properly

17

exhaust his available administrative remedies. (ECF No. 51). Plaintiff filed an opposition (ECF

18

No. 57), defendant Rodriguez filed a reply (ECF No. 61), and Plaintiff (without requesting

19

permission) filed a surreply (ECF No. 63). An Albino evidentiary hearing is currently set for

20

March 27, 2019, at 11:00 a.m. (ECF No. 72).

21

On February 4, 2019, Plaintiff filed a motion for attendance of witnesses (“the

22

Motion”). (ECF No. 77). On February 14, 2019, Plaintiff filed a supplement to the Motion.

23

(ECF No. 79). On February 22, 2019, defendant Rodriguez filed an opposition to the Motion.

24

(ECF No. 81).
For the reasons described below, the Motion will be denied.

25
26

II.

ATTENDANCE OF INMATE WITNESSES

27

On January 9, 2019, the Court issued an order regarding the procedures related to the

28

evidentiary hearing. (ECF No. 72). Plaintiff was informed that if he wanted the Court to
1

1

compel witnesses to attend or to arrange for attendance of witnesses via the issuance of writs of

2

habeas corpus ad testificandum, he would need to file a motion for attendance of witnesses.

3

(Id. at pgs. 1-2). Plaintiff was told that “[t]he motion must: (1) state the name, address, and

4

prison identification number (if any) of each witness Plaintiff wants to call; (2) explain what

5

relevant information each witness has, and how that witness has personal knowledge of the

6

relevant information; and (3) state whether each such witness is willing to voluntarily testify.”

7

(Id.) (footnotes omitted).

8

III.

9
10

PLAINTIFF’S MOTION
Plaintiff seeks to bring four inmate witnesses to the evidentiary hearing: (1) Mario

Molina; (2) Peter Mercado; (3) Miguel Ruiz; and (4) Michael Hernandez. (ECF No. 77).

11

For all four witnesses, Plaintiff states that the relevant information the witness has is

12

“due to ‘administrative exhaustion the physical abuse/excessive use of force’ the prison

13

officials use on inmates.” (Id.).

14

Defendant Rodriguez opposes the motion on the ground that Plaintiff failed to identify

15

any witness that has personal knowledge of Plaintiff’s attempts to exhaust his administrative

16

remedies. (ECF No. 81).

17

IV.

DISCUSSION

18

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

19

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

20

9381, *6, 2006 WL 449095 (E.D. Cal. Feb. 17, 2006). Accord Walker v. Sumner, 14 F.3d

21

1415, 1422 (9th Cir. 1994).

22

As the Court noted in its order issued on December 21, 2018, the Court set the Albino

23

hearing because “there are disputes of fact regarding whether Plaintiff ever received the second

24

level response and whether he took efforts to obtain the response in order to pursue an appeal to

25

the third level. These disputes of fact appear material to the legal issues presented.” (ECF No.

26

69, p. 2). Based on the summary Plaintiff provided of each potential witnesses’ testimony,

27

defendant Rodriguez is correct that none of Plaintiff’s witnesses have personal knowledge

28

regarding Plaintiff’s alleged attempts to exhaust administrative remedies.
2

1

Accordingly, after conducting a “cost-benefit analysis regarding whether the inmate[s]

2

should come to court,” Cummings, 2006 U.S. Dist. LEXIS 9381 at *7, the Court has

3

determined that none of Plaintiff’s witnesses should be brought to Court, and that the Motion

4

should be denied in its entirety.1

5

V.

6

ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the Motion is DENIED.

7
8
9

IT IS SO ORDERED.
Dated:

March 1, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
1

28

The Court notes that to the extent that Plaintiff wishes to bring witnesses to the hearing that are not
incarcerated and are willing to testify voluntarily, he does not need the Court’s approval.
3