Kelley v. Herrera et al

Filing 45

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/05/18 DENYING 27 Motion for civil contempt proceedings without prejudice to renewal as a motion in limine prior to trial in the event that plaintiff submits a witness list which includes Mr. Craig. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TSHOMBE M. KELLEY,

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No. 2:16-cv-01894 JAM CKD P

Plaintiff,
v.

ORDER

A. HERRERA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to

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42 U.S.C. § 1983. The complaint is proceeding on an Eighth Amendment use of excessive force

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and/or a failure to intervene in the use of excessive force claim against five prison officials at

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California State Prison-Sacramento (“CSP-Sacrament”). See ECF No. 1, 4 (complaint and

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screening order).

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Currently pending before the court is defendants’ motion for civil contempt proceedings

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against a non-party inmate or, in the alternative, a motion to exclude his testimony for refusing to

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appear at a deposition. ECF No. 27. Plaintiff has not filed an opposition, but has filed a motion

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for partial summary judgment. See ECF No. 30. Also pending, but not yet fully briefed, is

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defendants’ motion for summary judgment. See ECF Nos. 37, 42 (summary judgment motion,

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plaintiff’s opposition).

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The events giving rise to the instant civil rights suit occurred on the exercise yard at CSP1

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Sacramento on February 17, 2015. During the course of discovery, defendants identified several

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inmate-witnesses who were present on the exercise yard on the date in question. See ECF No.

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27-1 at 1. One of these inmate-witnesses was Kevin Craig. Id. Mr. Craig refused to speak with

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defense counsel and also refused to attend his properly-noticed deposition on August 18, 2017.

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ECF Nos. 27 at 2; 27-1 at 2, 6-7, 10.

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Based on his failure to cooperate, defendants filed a motion seeking to exclude Mr.

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Craig’s testimony at any stage in the litigation pursuant to the court’s inherent discovery

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management authority. See ECF No. 27 at 2-3 (citing Unigard Sec. Ins. Co. v. Lakewood Eng’g

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& Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992)). Defendants are not requesting any civil

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contempt remedies such as a fine or imprisonment because Mr. Craig is already serving a life

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sentence in the California Department of Corrections and Rehabilitation. ECF No. 27 at 3.

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Defendants contend that they “will be unfairly prejudiced by inmate Craig’s refusal to testify at

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his deposition because inmate Craig may surprise Defendants with testimony at summary

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judgment or trial.” Id.

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The court has reviewed plaintiff’s motion for partial summary judgment as well as his

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opposition to defendants’ motion for summary judgment and finds that Mr. Craig has not

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provided any testimony at the summary judgment stage of this case. See ECF Nos. 30, 42.

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Therefore, defendants’ motion is moot. Furthermore, in reviewing defendants’ own evidence

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submitted in support of their motion for summary judgment, Mr. Craig was pepper-sprayed,

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handcuffed, and was sitting with his back turned to plaintiff during the events giving rise to the

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instant lawsuit. See ECF No. 39 (Notice of Lodging Video). So it is unclear to the court how Mr.

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Craig would have any relevant testimony to provide at any trial of this matter.

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Accordingly, IT IS HEREBY ORDERED that defendants’ motion for civil contempt

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proceedings, ECF No. 27, is denied without prejudice to renewal as a motion in limine prior to

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trial in the event that plaintiff submits a witness list which includes Mr. Craig.

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Dated: January 5, 2018

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12/kell1894.contempt.docx

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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