Boothby v. Jorgensen et al

Filing 46

ORDER denying 42 Emergency MOTION Emergency Request Declare Witness Matheson Unavailable. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Daniel Boothby
v.

Civil No. 10-cv-424-JL

Erik Jorgensen, William Duffy,
Lee Houston, John O’Brien,
New Hampshire Department of
Corrections, and Jeffrey Bettez
O R D E R
The defendants in this action, in which plaintiff asserts an
Eighth Amendment claim under 42 U.S.C. § 1983 and a state-law
claim for common-law assault, have moved to have one of their
witnesses, Joshua Matheson, declared unavailable pursuant to Fed.
R. Evid. 804(a)(5) and (b)(6) so that they may offer his prior
statements in lieu of testimony at trial.

Defendants argue that

Matheson, who, like plaintiff, was an inmate at the New Hampshire
State Prison at the time of the events giving rise to this case,
is unavailable because he has expressed an “extreme fear for his
safety” if he testifies against plaintiff.
The motion (document no. 42) is denied.

Based upon the

facts related in defendants’ supporting memorandum and exhibits,
the court is not persuaded that Matheson is in danger if he
testifies at trial, that the alleged attacks against him are in
any way related to his statements regarding plaintiff, or that
the New Hampshire Attorney General is not well equipped and

positioned to provide sufficient assurances or protections to
allay Matheson’s fears.

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

May 23, 2012

Michael J. Sheehan, Esq.
Nancy J. Smith, Esq.
Rebecca L. Woodard, Esq.

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