Garraway v. Ciufo et al
Filing
154
ORDER GRANTING 141 Plaintiff's Motion for Attendance of Incarcerated Witness Richard Potts at Trial, signed by Magistrate Judge Gary S. Austin on 11/3/2022. (Rivera, O)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MITCHELL GARRAWAY,
Plaintiff,
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vs.
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JACQUILINE CIUFO, et al.,
Defendants.
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1:17-cv-00533-ADA-GSA (PC)
ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED WITNESS
RICHARD POTTS AT TRIAL
(ECF No. 141.)
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I.
BACKGROUND
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Plaintiff is a federal prisoner proceeding pro se with this civil rights action pursuant to
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Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now proceeds with Plaintiff’s
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original Complaint filed on April 17, 2017, against defendants Jacqueline Ciufo (Unit Manager),
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K. Miller (Corrections Officer), and Lieutenant J. Zaragoza (collectively, “Defendants”), for
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failure to protect Plaintiff in violation of the Eighth Amendment. (ECF No. 1.) This case is
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scheduled for a Pretrial Conference on May 22, 2023 at 1:30 p.m. and Jury Trial on August 1,
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2023 at 8:30 a.m., before the Honorable Ana de Alba.
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On September 1, 2022, Plaintiff filed a motion for the attendance of incarcerated witness
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Richard Potts, Reg. No. 51522-066, who is housed at U.S. Penitentiary-Terre Haute, Indiana,
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Life Connections Program Unit, to testify at trial. (ECF No. 141.) Defendants have not filed an
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opposition and the time to do so has passed. Local Rule 230(l).
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In support of his motion, Plaintiff declares under penalty of perjury that:
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(1)
Potts refuses to testify voluntarily;
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(2)
Potts was present at U.S. Penitentiary-Atwater, California, 5B Unit, on or about
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March 20, 2016;
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(3)
Plaintiff and assailant Norman Shelton were also housed at U.S. Penitentiary-
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Atwater, California, 5B Unit, on or about March 20, 2016, when Shelton cut
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Plaintiff’s nose with a razor;
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(4)
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Plaintiff to a different cell away from Shelton; and
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(5)
Potts confronted Shelton about cutting Plaintiff’s nose.
(Id.)
Plaintiff also informs the Court that he is unable to provide Potts’ address.
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Potts saw Plaintiff’s cut nose, instructed Plaintiff to ask Defendant Miller to move
II.
LEGAL STANDARD
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The uncertainty regarding whether or not the proposed witness is willing
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to testify voluntarily does not preclude this Court from ordering his transportation. King v. Biter,
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No. 115CV00414JLTSABPC, 2022 WL 891604, at *1 (E.D. Cal. Mar. 25, 2022). “Both sides
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in a trial have the right to call witnesses, and the power to compel witness testimony is essential
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to our system of justice.” Masterson v. Killen, No. 111CV01179SABPC, 2018 WL 953169, at
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*1 (E.D. Cal. Feb. 20, 2018) (quoting Barnett v. Norman, 782 F.3d 417, 422 (9th Cir. 2015)). A
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judge cannot “allow a witness to refuse to testify because he would prefer not to answer a
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question.” Id. (quoting Barnett, 782 F.3d at 422). “The public’s interest in full disclosure and the
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fair administration of justice overrides concerns that testimony might be inconvenient,
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burdensome, or harmful to a witness’s social or economic status.” Id. (quoting Barnett, 782 F.3d
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at 422.))
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In determining whether to grant Plaintiff’s motion for the attendance of his proposed
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witness, factors to be taken into consideration include (1) whether the inmate’s presence will
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substantially further the resolution of the case, (2) the security risks presented by
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the inmate’s presence, (3) the expense of transportation and security, and (4) whether the suit can
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be stayed until the inmate is released without prejudice to the cause asserted. King, 2022 WL
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891604, at *1 (citing Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see
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also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (district court did not abuse its
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discretion when it concluded the inconvenience and expense of transporting inmate witness
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outweighed any benefit he could provide where the importance of the witness’s testimony could
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not be determined), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)).
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III.
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DISCUSSION
Plaintiff alleges in the complaint that on March 20, 2016, he informed Defendant
Zaragoza that Plaintiff’s cellmate, inmate Shelton, had cut Plaintiff’s nose with a razor.
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Plaintiff submits that inmate Potts has actual knowledge of relevant facts as Plaintiff
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contends that Potts saw Plaintiff’s cut nose, instructed Plaintiff to ask Defendant Miller to move
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Plaintiff to a different cell away from inmate Shelton, and confronted Shelton about cutting
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Plaintiff’s nose.
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Plaintiff informs the Court that he cannot provide an address for inmate Richard Potts.
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However, Plaintiff states that inmate Richard Potts, BOP Register No. 51522-066, is currently
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housed at the U.S. Penitentiary-Terre Haute, Indiana, Life Connections Program Unit. This
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address is sufficient.
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After weighing the relevant factors and based on Plaintiff’s declaration, the Court finds
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that inmate witness Richard Potts has first-hand knowledge of the March 20, 2016 incident. Thus,
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Plaintiff has sufficiently demonstrated that Richard Potts’ presence at trial will substantially
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further the resolution of the case. However, there are significant expenses regarding
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transportation and substantial security concerns for transferring this inmate witness to court.
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Under Federal Rule of Civil Procedure 43(a), the Court may permit testimony in open
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court by contemporaneous video transmission “[f]or good cause in compelling circumstances
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and with appropriate safeguards[.]”
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Richard Potts is currently incarcerated at the U.S. Penitentiary in Terre Haute, Indiana,
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which is more than two thousand miles from the Court in California. As a result, transporting
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the inmate witness from that facility with sufficient security will be costly, require significant
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time, present housing issues, and would be disruptive for the inmate himself. Barnett v. Gamboa,
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No. 1:05-cv-01022-BAM (PC), 2015 U.S.Dist.LEXIS 169630, at *5-6 (E.D.Cal. Dec. 18, 2015.))
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Good cause and compelling circumstances may exist where a significant geographic distance
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separates the witness from the location of court proceedings, see Beltran-Tirado v. I.N.S., 213
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F.3d 1179, 1186 (9th Cir. 2000) (telephonic testimony appropriate where witness was in Missouri
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and hearing was in San Diego); Humbert v. O'Malley, 303 F.R.D. 461, 465 n. 20 (D. Md. 2014)
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(witness in Michigan and trial in Maryland); FTC v. Swedish Match N.A., Inc., 197 F.R.D. 1, 2
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(D. D.C. 2000) (witness in Oklahoma and trial in Washington, D.C.), or where the costs and
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safety concerns of producing the witness is particularly high. Id. (citing see Saenz v. Reeves,
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No. 1:09-cv-00557, 2013 U.S. Dist. LEXIS 53979, 2013 WL 1636045, at *3 (E.D. Cal. April 16,
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2013) (video testimony permitted where there was “significant expense and security risk”
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involved in producing inmate witness)). Furthermore, it is not practicable to stay this case until
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this inmate is released. Id. In addition, there may be security concerns for having this inmate
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physically appear in Court. The Court finds that the transportation costs and the security issues
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outweigh the Plaintiff’s need for the witness’s physical presence in Court.
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Contemporaneous video testimony is an appropriate method for allowing inmate Potts to
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testify in this case. Id. Because a witness testifying by video is observed directly with little, if
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any, delay in transmission, video testimony can sufficiently enable cross-examination and
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credibility determinations, as well as preserve the overall integrity of the proceedings. Id.
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(citing see Parkhurst v. Belt, 567 F.3d 995, 1003 (8th Cir. 2009); see also Swedish Match N.
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Am., 197 F.R.D. at 2 (finding that there was “no practical difference between live testimony and
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contemporaneous video transmission”)). In balancing the factors the Court is required to
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consider, the Court finds that the circumstances in this case are best served by having the inmate
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witness testify via video. Id.
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Based on the foregoing, the Court will grant Plaintiff’s motion for the attendance of
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inmate witness Richard Potts, and shall order that Potts be made available to testify via video
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conference at trial.
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III.
CONCLUSION
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Based on the foregoing, IT IS HEREBY ORDERED that:
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1.
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No. 141) is granted. Inmate Potts shall appear at trial by video conference
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Plaintiff’s motion for the attendance of inmate witness Richard Potts at trial (ECF
pursuant to Red. R. Civ. P. 43(a); and
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At the appropriate time before trial, the Court shall issue an order for inmate Potts
to be made available to testify at trial by video conference.
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IT IS SO ORDERED.
Dated:
November 3, 2022
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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