(PC) Barnett v. Gamboa, et al., No. 1:2005cv01022 - Document 370 (E.D. Cal. 2015)
Court Description: ORDER Granting Plaintiff's Motion for Attendance of Incarcerated Witness Delfonzo Jermain Moore 344 ; ORDER Granting Plaintiff's Motion for Attendance of Incarcerated Witness Jorge Luis Manrique 345 ; ORDER Denying Plaintiff's Motio n for Attendance of Incarcerated Witness Jammal Desean Jennings 346 ; ORDER Overruling Plaintiff's Opposition to Inmate Witnesses Testifying from HDSP via Contemporaneous Video Transmission 366 , signed by Magistrate Judge Barbara A. McAuliffe on 12/18/15. (Verduzco, M)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TROAS V. BARNETT, Plaintiff, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 v. MARTIN GAMBOA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:05-cv-01022-BAM (PC) ORDER GRANTING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED WITNESS DELFONZO JERMAIN MOORE (ECF No. 344) ORDER GRANTING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED WITNESS JORGE LUIS MANRIQUE (ECF No. 345) ORDER DENYING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED WITNESS JAMMAL DESEAN JENNINGS (ECF No. 346) ORDER OVERRULING PLAINTIFF’S OPPOSITION TO INMATE WITNESSES TESTIFYING FROM HDSP VIA CONTEMPORANEOUS VIDEO TRANSMISSION (ECF No. 366) 25 26 Plaintiff Troas Barnett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 27 in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to magistrate judge 28 jurisdiction. (Plaintiff’s consent, ECF No. 9; Defendants’ consent, ECF No. 62.) This action proceeds 1 1 on Plaintiff’s claims that Defendants Gamboa, Duran, and Torres used excessive physical force 2 against him in violation of his rights under the Eighth Amendment of the United States Constitution 3 and that Defendant Torres failed to intervene to protect Plaintiff from harm in violation of his rights 4 under the Eighth Amendment. A jury trial is set to commence in this matter on February 23, 2016. 5 Currently before the Court are Plaintiff’s motions for the attendance of the following three 6 incarcerated witnesses: (1) Delfonzo Jermain Moore (CDCR # H58727, High Desert State Prison 7 (“HDSP”)), (ECF No. 344); (2) Jorge Luis Manrique (CDCR #T86492, HDSP), (ECF No. 345); and 8 (3) Jammal Desean Jennings, (ECF No. 346). Plaintiff also filed declarations in support. Defendants 9 responded to the motions on December 3, 2015, (ECF No. 361), and Plaintiff filed an opposition to 10 that response on December 16, 2015, (ECF No. 366). The parties’ arguments were also heard on this 11 matter on December 17, 2015. 12 I. Legal Standard 13 In determining whether to grant Plaintiff’s motions for the attendance of incarcerated 14 witnesses, the Court considers the following factors: (1) whether the inmate’s presence will 15 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 16 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed until 17 the inmate is released without prejudice to the cause asserted. Wiggins v. County of Alameda, 717 18 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) 19 (district court did not abuse its discretion when it concluded the inconvenience and expense of 20 transporting inmate witness outweighed any benefit he could provide where the importance of the 21 witness’s testimony could not be determined), abrogated on other grounds by Sandin v. Conner, 515 22 U.S. 472 (1995). 23 II. Discussion 24 A. 25 26 Inmates Jermain Delfonso Moore (CDCR # H58727, HDSP) and Jorge Luis Manrique (CDCR # T86492, HDSP) Plaintiff declares that Inmate Moore witnessed the November 4, 2003 events at issue in this 27 case from the vantage point of his cell located below Plaintiff’s cell at the California Substance Abuse 28 Treatment Facility (“C.S.A.T.F.”). (ECF No. 344.) Inmate Moore allegedly also witnessed Plaintiff’s 2 1 resulting injuries, whether Defendant Torres immediately activated an emergency alarm, the staff’s 2 response to the alarm, and the firearm discharge at issue. (Id. at 2-3.) Plaintiff also declares that Inmate 3 Manrique witnessed the events at issue in this case from his cell located next to Plaintiff’s cell, 4 including the allegedly excessive uses of force and Plaintiff’s resulting injuries. (ECF No. 345.) 5 Plaintiff further declares that Inmate Manrique was instructed to clean Plaintiff’s cell after the incident 6 and thus observed relevant evidence.1 (Id. at 1.) Defendants confirmed that Inmate Moore is currently housed in the High Desert State Prison 7 8 (“HDSP”), where he is serving a 23 year-sentence for burglary 1st, burglary 2nd, robbery 2nd, 9 carjacking, and an in-custody crime of possession of a controlled substance. (ECF No. 361-1, p. 2.) 10 Inmate Moore’s earliest possible release date is in June 2017. (Id.) Inmate Manrique is also currently 11 housed in the HDSP, and he is serving a life sentence for murder with a possible early release date in 12 2027. (ECF No. 361, p. 2.) Because of the expenses and security concerns attendant to producing 13 Inmates Moore and Manrique in court, Defendants argue that the Court should consider ordering those 14 inmates to testify via contemporaneous video transmission. (Id. at 1-2.) Their counsel has reserved the 15 afternoon of February 23, 2016, the first day of trial, with the litigation coordinator of HDSP for this 16 testimony. Under Federal Rule of Civil Procedure 43(a), the Court may permit testimony in open court by 17 18 contemporaneous video transmission “[f]or good cause in compelling circumstances and with 19 appropriate safeguards[.]” Defendants have shown that the factors here weigh in favor of permitting 20 Inmates Moore and Manrique to testify via contemporaneous video transmission. According to 21 Plaintiff, Inmates Moore and Manrique were eye and ear witnesses to the events at issue in this action. 22 As such, their presence will substantially further the resolution of the case. However, there are 23 significant expenses regarding transportation and substantial security concerns for transferring these 24 inmate witnesses to court. HDSP is located in Susanville, California, nearly four hundred miles from Fresno, California, 25 26 and as a result transporting the inmate witnesses from that facility with sufficient security will be 27 1 28 The Court notes that these purported witnesses were not identified by Plaintiff as witnesses in the first trial of this matter. (Doc. 148-152.) The Court considers this fact as an additional reason for its decision to permit video conference-only testimony. 3 1 costly, require significant time, present housing issues, and would be disruptive for the inmates 2 themselves. Good cause and compelling circumstances may exist where a significant geographic 3 distance separates the witness from the location of court proceedings, see Beltran–Tirado v. I.N.S., 4 213 F.3d 1179, 1186 (9th Cir. 2000) (telephonic testimony appropriate where witness was in Missouri 5 and hearing was in San Diego); Humbert v. O’Malley, 303 F.R.D. 461, 465 n. 20 (D. Md. 2014) 6 (witness in Michigan and trial in Maryland); FTC v. Swedish Match N.A., Inc., 197 F.R.D. 1, 2 (D. 7 D.C. 2000) (witness in Oklahoma and trial in Washington, D.C.), or where the costs and safety 8 concerns of producing the witness is particularly high. See Saenz v. Reeves, No. 1:09–cv–00557, 2013 9 WL 1636045, at *3 (E.D. Cal. April 16, 2013) (video testimony permitted where there was 10 “significant expense and security risk” involved in producing inmate witness). Furthermore, it is not 11 practicable to stay this case until these inmates are released. In addition, there are substantial security 12 concerns for having these inmates physically appear in Court, as both witnesses are serving time for 13 violent crimes and on balance. Therefore, the security issues outweigh the Plaintiff’s need for 14 physical presence in Court. 15 Contemporaneous video testimony is an appropriate method for allowing Inmates Moore and 16 Manrique to testify in this case. Because a witness testifying by video is observed directly with little, if 17 any, delay in transmission, video testimony can sufficiently enable cross-examination and credibility 18 determinations, as well as preserve the overall integrity of the proceedings. See Parkhurst v. Belt, 569 19 F.3d 995, 1003 (8th Cir. 2009); see also Swedish Match N.A., Inc., 197 F.R.D. at 2 (finding that there 20 was “no practical difference between live testimony and contemporaneous video transmission”). 21 Plaintiff raises a number of objections to having Inmates Moore and Manrique testify by 22 contemporaneous video transmission. In balancing the factors the Court is required to consider, the 23 Court finds that the circumstances in this case are best served by having the inmate witnesses testify 24 via video. Plaintiff argues that Defendants have not identified any explicit security risk, but in fact 25 Defendants have confirmed that Inmates Moore and Manrique are housed in a maximum security state 26 prison for Level IV inmates, and they would require a significant, costly security presence in court. 27 Plaintiff is also concerned about assurances that the witnesses will be made available and the video 28 transmission equipment will work, but Defense Counsel will be ordered to ensure the necessary 4 1 confirmations and tests will be done. 2 Plaintiff also speculates that Inmates Moore and Manrique could be subject to witness 3 tampering, intimidation and threats, should they be known to be testifying in his case. Plaintiff offers 4 nothing other than pure speculation for these concerns, and the fact that Inmates Moore and Manrique 5 are taken to a litigation facility in the HDSP to testify rather than transported to this Court would not 6 affect these concerns anyway. Plaintiff also wishes to privately confer with Inmates Moore and 7 Manrique before they testify if they were brought to court, but this would not be allowed. Instead, 8 Plaintiff will have the opportunity to question the inmate witnesses when they are sworn in to give 9 their testimony, regardless of whether they give it via a video transmission from a litigation facility at 10 HDSP, or in the courtroom. Based on the foregoing, the Court will grant Plaintiff’s motions for the attendance of Inmates 11 12 Moore and Manrique, and order that they be made available to testify via video conference at trial. 13 B. Jammal Desean Jennings 14 Plaintiff declares that Jammal Desean Jennings is an inmate who was incarcerated at 15 C.S.A.T.F. on November 4, 2013, and witnessed Plaintiff being ordered to shower with his cellmate 16 and the resulting events, including the allegedly excessive uses of force and Plaintiff’s injuries. (ECF 17 No. 346.) Plaintiff moves for the California Department of Corrections and Rehabilitations (“CDCR”) 18 to transport Jennings to give trial testimony. However, Defense Counsel declares that Mr. Jennings is 19 no longer in CDCR custody, as he was released on parole in 2013. (ECF No. 361, p. 3; ECF No. 361- 20 1, pp. 1-2.) Consequently, Plaintiff’s motion for CDCR to transport Mr. Jennings is denied. 21 III. Conclusion and Order 22 Accordingly, it is HEREBY ORDERED as follows: 23 1. Plaintiff’s motion for attendance of incarcerated witness Delfonzo Jermain Moore, 24 (ECF No. 344), is GRANTED. Inmate Moore shall appear at trial by video conference pursuant to 25 Fed. R. Civ. P. 43(a); 26 2. Plaintiff’s motion for the attendance of incarcerated witness Jorge Luis Manrique, (ECF 27 No. 345), is GRANTED. Inmate Manrique shall appear at trial by video conference pursuant to Fed. 28 R. Civ. P. 43(a); 5 1 2 3 3. Plaintiff’s motion for the attendance of incarcerated witness Jammal Desean Jennings, (ECF No. 346), is DENIED; 4. Defense Counsel is ORDERED to confirm with the HDSP that their video equipment 4 can connect to the national VTC system (NVTCS) (via DCN IP address: 10.179.144.18, Public IP 5 address: 63.241.40.88, or ISDN address 858-812-0972). Defense Counsel is further ordered to 6 schedule a test call with the HDSP and the Clerk’s Office Information Technology staff, and also 7 confirm the date and time for the witnesses’ testimony itself. All confirmations and equipment testing 8 should be completed on or before January 15, 2016. If Defense Counsel is unable to make these 9 arrangements, or the video equipment is determined to be incompatible with the Court’s systems, 10 Defense Counsel shall file a status report by January 19, 2016 so informing the Court. 11 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara December 18, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
