Packs v. Adams et al
Filing
58
ORDER Confirming Trial for July 18, 2011; ORDER Granting in Part and Denying in Part Plaintiff's Motion for the Attendance of Incarcerated Witnesses 50 , 51 ; ORDER Requiring Plaintiff to Submit Witness Fees by June 30, 2011, signed by District Judge Lawrence J. O'Neill on 6/14/11. Jury Trial set for 7/18/2011 at 08:30 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill. (Verduzco, M)
<![CDATA[
1
UNITED STATES DISTRICT COURT
2
EASTERN DISTRICT OF CALIFORNIA
3
4
CHARLES AUSTIN PARKS,
5
Plaintiff,
6
7
CASE NO. 1:08-cv-01628-LJO-SMS PC
ORDER CONFIRMING TRIAL FOR JULY 18,
2011
v.
ORDER GRANTING IN PART AND DENYING
IN PART PLAINTIFF’S MOTION FOR THE
ATTENDANCE OF INCARCERATED
WITNESSES
DARYL G. ADAMS, et al.,
8
Defendants.
9
(ECF Nos. 50, 51)
10
ORDER REQUIRING PLAINTIFF TO SUBMIT
WITNESS FEES BY JUNE 30, 2011
11
/
12
13
Plaintiff Charles Austin Parks is a state prisoner proceeding pro se and in forma pauperis in
14
this civil rights action pursuant to 42 U.S.C. § 1983. Following resolution of Defendants’ motion
15
for summary judgment, this action is now proceeding on Plaintiff’s first amended complaint, filed
16
April 27, 2009, against Defendants Braswell, Young, Pighting, and Alexander for excessive force
17
in violation of the Eighth Amendment. On June 13, 2011, at 8:00 a.m. a telephonic status
18
conference was held in this action with Plaintiff appearing pro se and Michelle Angus, Esq.
19
appearing for Defendants. The trial date of July 18, 2011, was confirmed.
20
I.
Motion for the Attendance of Incarcerated Witnesses
21
On May 3, 2011, Plaintiff filed a motion for the attendance of nine incarcerated witnesses.
22
(ECF No. 50.) On May 4, 2011, Plaintiff filed the same motion which included one additional
23
witness declaration. (ECF No. 51.) Defendants filed a pretrial statement on May 27, 2011,
24
objecting to the testimony of inmates Colbert, Haney, and Moore as the scope of their testimony is
25
not clear, and their testimony would be cumulative, irrelevant, or not based on personal knowledge.
26
Plaintiff requests the attendance of Inmates Tommy Huynh, No. P-45472; Paul Sa’ole, Jr.,
27
No. J-54247; Jones, No. C-51462; W. L. Irving, No. K-76896; M. Dixon, No. V-96657; V. Frias,
28
No. D-72940; Colbert, C-52264; M. Haney, V-72062; and T. Moore, T-90404. Initially, Inmate
1
1
V. Frias, No. D-72940, paroled on July 18, 2009, and the number provided for Inmate Jones is
2
incorrect. The Court is unable to determine where Inmate Jones is housed without an inmate
3
number. Therefore, the request for the attendance of Inmates V. Frias, No. D-72940, and Jones is
4
denied.
5
In determining whether to grant Plaintiff’s motion for the attendance of inmates factors to
6
be taken into consideration include (1) whether the inmate’s presence will substantially further the
7
resolution of the case, (2) the security risks presented by the inmate’s presence, (3) the expense of
8
transportation and security, and (4) whether the suit can be stayed until the inmate is released
9
without prejudice to the cause asserted. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th
10
Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (district court did not
11
abuse its discretion when it concluded the inconvenience and expense of transporting inmate witness
12
outweighed any benefit he could provide where the importance of the witness’s testimony could not
13
be determined), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
14
Plaintiff requests the attendance of Inmates W. L. Irving, No. K-76896; M. Haney, V-72062;
15
and Colbert, C-52264, who were not present and did not observe the incident that occurred on
16
January 26, 2008. Inmate Irving would testify that Defendant Braswell refused to feed him for a
17
week in December of 2007, and took him to the rotunda to beat him because Defendant Braswell
18
has “racial animus towards African American Prisoners.” Inmate Haney would testify that in
19
December 2006, Defendant Braswell threatened to break his neck for no apparent reason; and in
20
January, 2007, Defendant Braswell deprived him of his evening meal two consecutive days. Inmate
21
Haney would also testify that Defendant Braswell has “racial animus towards African American
22
prisoners,” and that he observed Defendant Braswell go into another African American inmates cell,
23
assault him, and confiscate his television for no reason. Inmate Colbert would testify that in
24
September 2006, he observed Defendant Braswell acting in a “malicious and sadistic manner”
25
towards inmates under his care. Inmates Colbert and Haney are currently housed at New Folsom
26
and ordering their attendance at trial would require them to be transferred to an institution closer to
27
the courthouse.
28
Plaintiff requests the attendance of Inmate T. Moore, T-90404, however he fails to provide
2
1
a declaration from the inmate or a summary of his testimony. The Court is unable to determine
2
whether Inmate Moore possesses any personal knowledge or if his testimony would be relevant to
3
this action. Plaintiff has failed to demonstrate that Inmates W. L. Irving, No. K-76896; Colbert, C-
4
52264; M. Haney, V-72062; and T. Moore, T-90404, have personal knowledge of the events at
5
issue, or that they will provide any admissible evidence in this action. Their presence will not
6
further the resolution of the case so as to justify the risks and expenses of transporting them to testify
7
at the trial of this matter. Therefore, the request for the attendance of Inmates W. L. Irving, No. K-
8
76896; Colbert, C-52264; M. Haney, V-72062; and T. Moore, T-90404, is denied.
9
Inmates Tommy Huynh, No. P-45472, Paul Sa’ole, Jr., No. J-54247; and M. Dixon, No. V-
10
96657, were present on January 26, 2008, when the incident occurred and are either eye or ear
11
witnesses. Inmate Dixon is incarcerated at Pelican Bay State Prison, Inmate Huynh is incarcerated
12
at New Folsom State Prison, and Inmate Sa’ole is incarcerated at California Correctional Institution,
13
Tehachapi, so ordering their production for trial will require their transfer to a prison closer to the
14
courthouse. The testimony of these witnesses is relevant to the issues and their presence will further
15
the resolution of the case. Although there is no information available on potential security risks, this
16
does not appear to be an issue above and beyond normal security concerns in handling convicted
17
prisoners. Further, there is no information available on whether inmates Huynh, Sa’ole, or Dixon
18
will be released from custody soon. Accordingly, the request for the attendance of Inmates Tommy
19
Huynh, No. P-45472; Paul Sa’ole, Jr., No. J-54247; and M. Dixon, No. V-96657, is granted.
20
B.
Unincarcerated Witnesses
21
Although Plaintiff failed to submit a motion for the attendance of unincarcerated witnesses,
22
he has listed six correctional officers on his witness list. If the witnesses do not agree to appear
23
voluntary, Plaintiff will need to submit the witness fee and mileage of $96.06 for each witness.1 If
24
Plaintiff wishes to have Bare, Calhoun, Callow, Foley, Silva, and Hieng served with summonses to
25
testify at trial, he must submit, for each witness, a money order made out to that witness in the
26
amount of $96.06, by June 30, 2011.
27
28
1
The daily witness fee of $40.00, plus $56.06 for round trip mileage for one day. 28 U.S.C. § 1821.
3
1
Based on the foregoing, it is HEREBY ORDERED that:
2
1.
3
The trial in this matter is confirmed for July 18, 2011, at 8:30 a.m. before the
Honorable Lawrence J. O’Neill;
4
2.
Plaintiff’s motion for the attendance of incarcerated witnesses is DENIED IN PART
5
and GRANTED IN PART as follows:
6
a.
Plaintiff’s motion for the attendance of Inmates V. Frias, No. D-72940, W.
7
L. Irving, No. K-76896; Colbert, C-52264; M. Haney, V-72062; T. Moore,
8
T-90404; and Jones is DENIED;
9
b.
Plaintiff’s motion for the attendance of Inmates Tommy Huynh, No. P-
10
45472; Paul Sa’ole, Jr., No. J-54247;and M. Dixon, No. V-96657, is
11
GRANTED
12
c.
Orders directing the attendance of inmates Tommy Huynh, No. P-45472;
13
Paul Sa’ole, Jr., No. J-54247; and M. Dixon, No. V-96657 will be issued
14
closer to the trial date;
15
3.
If Plaintiff wishes to have Bare, Calhoun, Callow, Foley, Silva, and Hieng served
16
with summonses to testify at trial, he must submit, for each witness, a money order
17
made out to that witness in the amount of $96.06, by June 30, 2011. The Court
18
cannot accept cash, and the money orders may not be made out to the Court.
19
The money orders must be made out in the witness’s name; and
20
4.
21
22
Dated:
b9ed48
Due to the short time frame for Plaintiff to respond and the pendency of the trial in
this action, defense counsel is requested to facilitate service of this order upon
Plaintiff.IT IS SO ORDERED.
June 14, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
23
24
25
26
27
28
4
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
