(PC) Glass v. Beer, et al, No. 1:2004cv05466 - Document 205 (E.D. Cal. 2010)
Court Description: ORDER Granting and Denying Plaintiff's Motion for Attendance of Incarcerated Witnesses, signed by Judge Oliver W. Wanger on 3/1/2010. 190 191 192 193 194 195 . (Verduzco, M)
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(PC) Glass v. Beer, et al Doc. 205 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DONALD GLASS, 10 Plaintiff, 11 v. 12 R.W. BEER, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:04-cv-05466-OWW-SMS PC ORDER GRANTING AND DENYING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES (Docs. 190, 191, 192, 193, 194, and 195) 15 16 I. Order 17 A. 18 This is a civil rights action filed pursuant to 42 U.S.C. § Procedural History 19 1983 by Plaintiff Donald Glass, a state prisoner proceeding pro 20 se. 21 March 22, 2004, against Defendants Beer, Keener, Sloss, Morales, 22 and Dill for violation of the Eighth Amendment, and against 23 Defendants Beer, Keener, Sloss, Morales, Dill, Butts, Adkison, 24 Gonzales, Castillo, Buckley, Streeter, Marshall, and Lloren for 25 retaliation. 26 requesting a court order directing Defendants to provide the 27 Court and Plaintiff with the prison address and location of six 28 incarcerated witnesses, who refused to testify voluntarily, that This action is proceeding on Plaintiff’s complaint, filed December 28, 2009, Plaintiff filed motions 1 Dockets.Justia.com 1 they be brought to court to attend trial. 2 193, 194, and 195.) 3 motion January 12, 2010. 4 February 16, 2010. 5 (Docs. 190, 191, 192, Defendants filed their opposition to this (Doc. 197.) Plaintiff filed a reply (Doc. 203.) Plaintiff essentially requests an order identifying the 6 location of his six incarcerated witnesses and that they be 7 brought to court to testify at the trial of this action. 8 Plaintiff’S motions are CONSTRUED as motions for attendance of 9 incarcerated witnesses. 10 B. 11 The Second Scheduling Order delineated that Plaintiff must Timeliness 12 file any motion for incarcerated witnesses to attend the trial of 13 this matter concurrent with his pretrial statement, on or before 14 December 15, 2009. 15 were filed December 28, 2009. 16 circumstances, Plaintiff’s motions would be denied as untimely – 17 which Defendants raised in their opposition. 18 2010, Plaintiff filed a motion explaining that he had not been 19 able to timely file his pretrial statement (and concurrent 20 motions for attendance of incarcerated witnesses) because of 21 racial tension, prisoner on prisoner violence, dense fog, power 22 outages, and other security concerns which caused the facility in 23 which he is housed to be on and off “lock down” such that, while 24 he received a ducat to go to the law library on December 15, 25 2009, Plaintiff was not actually allowed access to the law 26 library until December 21, 2009. 27 of service notes that both his pretrial statement and his motions 28 for attendance by unincarcerated witnesses were deposited with (Doc. 184, pp. 2-3.) Plaintiff’s motions (Docs. 190 - 195.) (Doc. 196.) 2 Under ordinary However, January 8, Plaintiff’s proof 1 prison staff for mailing on December 21, 2009. 2 Granting the leniencies accorded to a pro se inmate, Plaintiff’s 3 motions for attendance of incarcerated witnesses will be 4 considered on the merits rather than summarily dismissed on 5 procedural grounds. 6 C. 7 As stated in the Second Scheduling Order, 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Doc. 192, p. 3.) Legal Standard An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot come to court unless the Court orders the warden or other custodian to permit the witness to be transported to court. The Court will not issue such an order unless it is satisfied that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual knowledge of relevant facts. A party intending to introduce the testimony of incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file concurrent with the pre-trial statement a written motion for a court order requiring that such witnesses be brought to court at the time of trial. The motion must: (1) state the name, address, and prison identification number of each such witness; and (2) be accompanied by declarations showing that each witness is willing to testify and that each witness has actual knowledge of relevant facts. The motion should be entitled “Motion for Attendance of Incarcerated Witnesses.” The willingness of the prospective witness can be shown in one of two ways: (1) the party himself can swear by declaration under penalty of perjury that the prospective witness has informed the party that he or she is willing to testify voluntarily without being subpoenaed, in which declaration the party must state when and where the prospective witness informed the party of this willingness; or (2) the party can serve and file a declaration, signed under penalty of perjury by the prospective witness, in which the witness states that he or she is willing to testify without being subpoenaed. The prospective witness’s actual knowledge of relevant facts can be shown in one of two ways: (1) if the party has actual firsthand knowledge that the prospective witness was an eyewitness or an earwitness to the relevant facts (i.e., if an incident occurred in Plaintiff’s cell and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may swear to the cellmate’s ability to testify), the party himself can 3 1 2 3 4 5 6 7 8 9 swear by declaration under penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a declaration signed under penalty of perjury by the prospective witness in which the witness describes the relevant facts to which the prospective witness was an eye- or earwitness. Whether the declaration is made by the party or by the prospective witness, it must be specific about the incident, when and where it occurred, who was present, and how the prospective witness happened to be in a position to see or to hear what occurred at the time it occurred. The Court will review and rule on the motion for attendance of incarcerated witnesses, specifying which prospective witnesses must be brought to court. Subsequently, the Court will issue the order necessary to cause the witness’s custodian to bring the witness to court. 10 11 12 (Doc. 184, 2nd Sch. Ord., pp. 2-3.) Plaintiff requests the whereabouts of, and the attendance at 13 the trial in this matter by, six inmates, to wit: Wittier 14 Buchanan inmate number K02554 (Doc. 191); Jason Ortiz inmate 15 number P72425 (Doc. 195); Rodney Fleming inmate number E09596 16 (Doc. 192); Robert S Milton inmate number T06653 (Doc. 194); Eric 17 Jackson inmate number D47735 (Doc. 193); and James Thompson 18 inmate number C89908 (Doc. 190). 19 Mr. Ortiz paroled in September of 2009 and Mr. Fleming 20 paroled in July of 2009. 21 are no longer incarcerated, an incarceration custodian cannot be 22 ordered to produce them to testify at trial. 23 Thus, since Mr. Ortiz and Mr. Fleming Plaintiff has not shown that inmates Jackson, Thompson, and 24 Milton have personal knowledge of information that is relevant in 25 this case to necessitate their attendance at the trial of this 26 matter. As to these three individuals, Plaintiff only presents 27 information that each: 28 Beer and Morales are particularly violent prison officials who has “personal knowledge” that Defendants 4 1 have beaten defenseless prisoners at CSP-Cor (Doc. 194, Milton, ¶ 2 2; Doc. 193, Jackson, ¶ 2; Doc. 190, Thompson, ¶ 2); “has himself 3 been victimized by Defendants Beer and Morales violent behavior 4 when they beat him up and seriously injured him as a perverted 5 form of prison justice” (Doc. 194, Milton, ¶ 3; Doc. 193, 6 Jackson, ¶ 3; Doc. 190, Thompson, ¶ 3); “has personal knowledge 7 that Defendants Marshall, Dill, Keener, Buckley, Castillo, and 8 Streeter were absolutely aware that Defendants Beer and Morales 9 had beat up and seriously injured so many handcuffed prisoners 10 from the numerous 602 complaints/appeals filed by all those 11 injured prisoners and the numerous CDC-837 incident reports 12 generated from these violent incidents” (Doc. 194, Milton, ¶ 4; 13 Doc. 193, Jackson, ¶ 4; Doc. 190, Thompson, ¶ 4); and “has 14 personal knowledge and information that Defendants Dill, Keener, 15 Marshall, Buckley, Castillo and Streeter used their positions as 16 high ranking prison officials and administrators at (“CSP-Cor”) 17 to cover up (criminal code of silence or SCP-Cor Green Wall of 18 silence) Defendants Beer, Morales and a C/O named B. David 19 violent behavior and violence against so many inmates that they 20 attacked and beat up from 2001 through 2004” (Doc. 194, Milton, ¶ 21 5; Doc. 193, Jackson, ¶ 5; Doc. 190, Thompson, ¶ 5). 22 Only relevant evidence (i.e. that which tends to prove or 23 disprove a material fact in question) is admissible at the trial 24 of an action. 25 crimes, wrongs, or acts is not admissible to prove the character 26 of a person in order to show action in conformity therewith, but 27 may be admissible for other purposes, such as proof of motive, 28 opportunity, intent, preparation, plan, knowledge, identify, or Fed. R. Evid. 401 & 402. 5 Evidence of other 1 2 absence of mistake or accident. Fed. R. Evid. 404. Plaintiff argues that inmates Jackson, Thompson, and Milton 3 should be allowed to testify as to the violent reputations of 4 Defendants Beer and Morales and that Defendants Marshall, Dill, 5 Castillo, Buckley, Keener, and Streeter as to their “notorious 6 reputation” of authorizing and/or condoning shootings and violent 7 assaults on inmates by Defendants Beer and Morales. 8 p. 4:3-12.) 9 for no purpose other than to show action by Defendant(s) in (Doc. 203, Yet, any such evidence could be offered in this case 10 conformity with prior alleged bad acts – which, as Defendants 11 correctly point out, is inadmissible character evidence under 12 Rule 404, of the Federal Rules of Evidence. 13 determining whether to grant Plaintiff’s motion for the 14 attendance of inmates Jackson, Thompson, and Milton, factors to 15 be taken into consideration include (1) whether the inmates’ 16 presence will substantially further the resolution of the case, 17 (2) the security risks presented by the inmates’ presence, (3) 18 the expense of transportation and security, and (4) whether the 19 suit can be stayed until the inmate is released without prejudice 20 to the cause asserted. 21 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 22 1415, 1422 (9th Cir. 1994) (district court did not abuse its 23 discretion when it concluded the inconvenience and expense of 24 transporting inmate witness outweighed any benefit he could 25 provide where the importance of the witness’s testimony could not 26 be determined), abrogated on other grounds by Sandin v. Conner, 27 515 U.S. 472, 115 S.Ct. 2293 (1995). 28 Plaintiff has not shown that inmates Jackson, Thompson, and Further, in Wiggins v. County of Alameda, 717 F.2d 6 In this case, since 1 Milton will provide admissible evidence, their presence will not 2 substantially further the resolution of the case so as to justify 3 the risks and expenses of transporting them to testify at the 4 trial of this matter. 5 Thus, the custodian(s) of Mr. Jackson, Mr. Thompson, and Mr. 6 Milton will not be ordered to transport these inmates to testify 7 at the trial of this action. 8 9 Plaintiff has, however, shown that inmate Buchanan has actual knowledge of relevant facts in as much as Plaintiff 10 submitted a declaration under penalty of perjury that inmate 11 Buchanan was in a cell “only several cells away” and was a 12 percipient witness to the October 23, 2010 incident (Doc. 191, ¶ 13 3); witnessed Defendants Beer, Butts, and Keener supervising the 14 rolling up and inventory of Plaintiff’s personal property which 15 was removed from Plaintiff’s cell and left unsecured in the 16 rotunda/hallway area from October 23, 2001 through October 28, 17 2001 (Id. at ¶ 4); and has evidence which would contravene 18 defendants’ evidence as to how Plaintiff’s hearing aids were 19 disposed of and television set damaged (Id. at ¶ 5). 20 statement is not specific enough to justify inmate Buchanan’s 21 attendance at the trial in this matter, but the two former 22 statements warrant an order to cause inmate Buchanan’s custodian 23 to transport him to testify during the trial of this case. 24 Plaintiff indicates that, due to the passage of time, he is 25 unsure whether inmate Buchanan is still willing to voluntarily 26 testify, Plaintiff has sufficiently demonstrated that inmate 27 Buchanan has actual knowledge of relevant facts on which to order 28 his attendance at trial. The latter While Inmate Buchanan has been located within 7 1 the California State Prison system. 2 appropriate time to cause his appearance to testify at the trial 3 of this case. 4 An order will issue at the Accordingly, Plaintiff’s motions for the attendance of 5 incarcerated witnesses, filed December 28, 2009, are DENIED as to 6 inmates Jason Ortiz inmate number P72425, Rodney Fleming inmate 7 number E09596, Robert S. Milton inmate number T06653, Eric 8 Jackson inmate number D47735, and James Thompson inmate number 9 C89908; and Plaintiff’s motion for the attendance of incarcerated 10 witness, filed December 28, 2009, is GRANTED as to Wittier 11 Buchanan inmate number K02554. 12 13 14 15 16 17 IT IS SO ORDERED. 18 Dated: March 1, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 8
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