(PC) Bruce v. Chaiken ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT BRUCE, No. 2: 15-cv-960 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 SHAMA CHAIKEN, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. This action is set for jury trial before the Honorable Troy L. Nunley on 20 February 10, 2020. Pending before the court is plaintiff’s motion for incarcerated witnesses to be 21 brought to trial. (ECF No. 110.) Defendants oppose this motion, in part. (ECF No. 112.) For 22 the reasons stated herein, plaintiff’s motion is granted in part and denied in part. 23 II. Legal Standard 24 In determining whether to grant plaintiff’s motions for the attendance of incarcerated 25 witnesses, the court considers the following factors: (1) whether the inmate’s presence will 26 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 27 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed 28 until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 1 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 2 (9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience 3 and expense of transporting inmate witness outweighed any benefit he could provide where the 4 importance of the witness’s testimony could not be determined), abrogated on other grounds by 5 Sandin v. Conner, 515 U.S. 472 (1995). 6 III. Discussion 7 Plaintiff requests that inmates Perez and Harvey be brought to trial to testify on his behalf. 8 Plaintiff alleges that inmates Perez and Harvey informed plaintiff that they would testify 9 voluntarily. 10 A. Background 11 The proposed testimony of inmates Perez and Harvey is relevant to some of plaintiff’s 12 claims against defendants Clingman, Bobbala, Nangalama and Ikegbu. 13 Plaintiff alleges that defendant Clingman acted negligently and with the intent to inflict 14 emotional distress when she denied his request to see a doctor on September 4, 2013. Plaintiff 15 alleges that defendant Clingman acted negligently and with the intent to inflict emotional distress 16 when she disregarded his claims of rectal tears made in his sick call request when she permitted 17 him to be transferred to Pelican Bay State Prison (“PBSP”) on September 10, 2013. 18 Plaintiff alleges that on September 5, 2015, defendant Bobbala acted negligently and with 19 the intent to inflict emotional distress when he prescribed Colace and Milk of Magnesia for 20 plaintiff. Plaintiff also alleges that defendant Bobbala acted negligently and with the intent to 21 inflict emotional distress when he conditioned the prescription for Colace and Milk of Magnesia 22 on plaintiff’s agreement to resume eating. 23 Plaintiff alleges that defendant Nangalama violated the Eighth Amendment and state law, 24 i.e., negligence and intentional infliction of emotional distress, when he prescribed a self- 25 administered enema for plaintiff on September 7, 2013 because plaintiff was physically incapable 26 of performing the enema. Plaintiff also claims that defendant Nangalama acted negligently and 27 with the intent to inflict emotional distress when he prescribed the self-administered enema 28 because plaintiff had fecal impaction. Plaintiff also alleges that defendant Nangalama acted 1 negligently and/or with the intent to inflict emotional distress when he failed to perform 2 additional tests and failed to order adequate monitoring of plaintiff while he attempted to self- 3 administer the enema. Plaintiff also alleges that defendant Nangalama violated the Eighth 4 Amendment and state law, i.e., negligence and intentional infliction of emotional distress, when 5 he approved plaintiff’s transfer back to PBSP. 6 Plaintiff alleges that defendants Clingman, Bobbala and Nangalama denied him medical 7 care in retaliation for his participation in a hunger strike and for complaints he made regarding 8 medical care. 9 In relevant part, plaintiff alleges that defendant Ikegbu acted negligently and with the 10 intent to inflict emotional distress when she failed to treat plaintiff’s torn rectum on September 11 11, 2013 and September 24, 2013. 12 B. Inmate Perez 13 The declarations of inmates Perez and Harvey are attached to the pending motion. In his 14 declaration, inmate Perez states, 15 2. From approximately August 23, 2013 until September 10, 2013, I was incarcerated at California State Prison at Sacramento. This 16 prison is referred to as “New Folsom” by most inmates and CDCR staff. During the above dates, I was housed in the cell (#119) next 17 door to Vincent Bruce, who was housed in cell # 118. 18 3. While in cell # 119, I was in a position to see or hear many of Bruce’s interactions with medical staff when they came to the cell. 19 4. Most if not all of the inmates in our housing unit were 20 participating in a mass hunger strike that began on approximately July 8, 2013, that at one point involved up to 30,000 inmates. Bruce 21 and I were two of the participants. The hunger strike was a peaceful protest of CDCR’s inhumane solitary confinement conditions and 22 practices. 23 5. On or about September 4, 2013, the hunger strike concluded. However, Bruce indicated that he could not resume eating until he 24 was treated for severe constipation. Bruce told a nurse named “Nurse Judy,” who I believe was a supervising nurse, this information. The 25 nurse expressed disbelief, and appeared angry Bruce would not eat. Bruce explained that he had a history of getting severely constipated 26 on hunger strikes, and that he was sure he could not pass the stool without damaging his insides. The nurse said she would tell a doctor. 27 6. On September 5, 2013, Bruce was escorted to the makeshift clinic 28 in the housing unit Bruce and I resided in for “Doctor’s line.” Bruce 1 was escorted to the doctor’s line in waist chains, with handcuffs attached at the side. 2 7. Bruce told me upon his return that the doctor refused to treat him 3 unless he resumed eating. 4 8. Nurse Judy came by after Bruce returned trying to talk him into eating. She told him she would make sure he received treatment if 5 he started eating. She said that there was another doctor she would talk to about his requested treatment. 6 9. Sometime after Nurse Judy came by, two men came by in suits, 7 and told Bruce that if he did not begin eating he would be moved to ASU. ASU is the most severe sensory deprivation unit at New 8 Folsom. 9 10. Bruce spoke to Nurse Judge again and agreed to resume eating. Nurse Judge had Bruce brought out to a standing-room-only cage in 10 our building so she could make sure he ate in front of her. 11 11. The next day Bruce complained to nurses that he was experiencing severe pain because of the severe constipation he 12 suffered. He said the stool was too big and hard to pass. And pressure was building up in his abdomen and bowels. 13 12. Bruce was taken to see a doctor that day. When he returned 14 Bruce told me they just wanted to give him pills and some self-enema bottles. He said they were not treating his condition as an emergency. 15 13. The next morning, September 7th, Bruce told he was in a lot of 16 pain as he had to force the stool out which he said was twice as big as usual and hard like wood. He asked me about my stool after the 17 hunger strike, which I told him was very hard too but in small pebbles. He said he was bleeding real bad from his backside. 18 14. That same morning, Bruce told one or two nurses that his rectum 19 was torn and that he needed to see the doctor because he was bleeding “down there.” 20 15. Bruce again requested to see the doctor the next day, on 21 September 8th, asking the nurses who came by. Bruce also asked for medical requests, but the nurses would not bring him one to my 22 knowledge. 23 16. On September 10, 2013, Bruce was put on a bus which staff told him was going back to Pelican Bay. 24 17. It is my understanding that a claim is being made that Bruce 25 refused medical care. I did not see Bruce refuse medical care. I did see and hear him request that medical staff conduct his vitals at the 26 makeshift clinic instead of standing in front of his cell. The nurses would tell him he would be brought to the makeshift clinic to have 27 his vitals checked, but would not bring him. This occurred several times to Bruce. In my experience, correctional staff, including 28 medical staff, who did not escort someone to a medical appointment 1 would always blame the inmate, falsely claiming the inmate refused. 2 18. The medical treatment at New Folsom was poor at best compared to other prisons. The nurses who were supposed to be observing us 3 and taking notes would often walk quickly by without taking notes. They would never ask us questions about how we were feeling. They 4 would sometimes not even walk at their scheduled times. They would get annoyed or angry when an inmate requested to have his 5 vitals checked at the makeshift clinic, because they were lazy and wanted to do the vitals quickly at the front of the cell while the inmate 6 was handcuffed and standing. 7 19. It appeared to me that the medical staff were in particular annoyed or angry with Bruce. Bruce had filed multiple complaints 8 on behalf of us inmates, complaining about the medical care and conditions at New Folsom that we hunger strikers were subjected to. 9 10 (Id. at 4-7.) 11 At the outset, the undersigned clarifies that “Nurse Judy,” referred to in inmate Perez’s 12 declaration appears to be defendant Clingman. 13 A statement made out of court, which is offered for the truth of the matter asserted in the 14 statement is hearsay. Fed. R. Evid. 801. Hearsay is not admissible, Fed. R. Evid. 802, unless it 15 meets an exception. Fed. R. Evid. 803. 16 Much of the information in inmate Perez’s declaration is hearsay. For example, inmate 17 Perez’s statement that on September 4, 2013 he heard plaintiff tell defendant Clingman that he 18 could not resume eating until he was treated for constipation is hearsay. 19 In the pending motion, plaintiff admits that some of Perez’s proposed testimony “may 20 raise hearsay concerns,” but argues that the proposed hearsay is admissible pursuant to one of the 21 exceptions to the hearsay rule, such as the exception for a prior consistent statement. 22 The undersigned finds that inmate Perez’s hearsay statements do not meet any hearsay 23 exceptions. Regarding the exception for prior consistent statements, Federal Rule of Evidence 24 801(d)(1)(B) provides, 25 (d) Statements That Are Not Hearsay. 26 (1) A Declarant-Witness’s Prior Statement: The declarant testifies and is subject to cross-examination about a prior statement, and the 27 statement, 28 **** 1 (B) is consistent with the declarant’s testimony… 2 Fed. R. Evid. 801(d)(1)(B). 3 Inmate Perez’s testimony regarding statements he heard plaintiff make is not admissible 4 pursuant to Rule 801(d)(1)(B). Rule 801(d)(1)(B) applies to prior consistent statements made by 5 the witness him or herself. 6 The undersigned cannot determine the relevance of inmate Perez’s general statement that 7 the medical treatment at New Folsom was poor because the nurses were not attentive. Inmate 8 Perez does not identify the nurses or the inmates who allegedly received inadequate medical care. 9 Inmate Perez also does not describe the allegedly poor medical care. The undersigned also 10 cannot determine the relevance of inmate Perez’s statement that the medical staff appeared 11 annoyed or angry with plaintiff because inmate Perez does not identify the medical staff who 12 appeared angry or annoyed. 13 Plaintiff argues that inmate Perez’s statement that he did not see plaintiff refuse an exam 14 is relevant to defendants’ claim that plaintiff refused treatment. (ECF No. 110 at 2.) In support 15 of this argument, plaintiff cites the findings and recommendations addressing defendants’ 16 summary judgment motion. (Id.) At the page of the findings and recommendations cited by 17 plaintiff, the undersigned cited defendant Bobbala’s records from September 5, 2013, stating that 18 plaintiff refused a physical examination. (ECF No. 91 at 18.) 19 In his declaration, inmate Perez states that defendant Bobbala examined plaintiff in the 20 medical clinic on September 5, 2013. Defendant Bobbala’s records from September 5, 2013, also 21 indicate that he examined plaintiff in the medical clinic. (ECF No. 37-6 at 5.) It is unclear how 22 inmate Perez could have any personal knowledge regarding what occurred between plaintiff and 23 defendant Bobbala in the medical clinic on September 5, 2013. See Fed. R. Evid. 602 (a witness 24 may testify to a matter only if evidence is introduced sufficient to support a finding that the 25 witness has personal knowledge of the matter). Accordingly, inmate Perez’s testimony that 26 plaintiff did not refuse an exam from defendant Bobbala on September 5, 2013, is not admissible. 27 Inmate Perez states that defendant Clingman appeared angry with plaintiff for not eating 28 on September 4, 2013. Evidence that defendant Clingman was angry with plaintiff may support 1 plaintiff’s state law claim that defendant Clingman denied his request to see a doctor on that date 2 and his related retaliation claim. However, the value of this testimony to these claims is low. For 3 this reason, and because plaintiff may testify regarding defendant Clingman’s demeanor that day, 4 inmate Perez’s testimony that defendant Clingman was angry with plaintiff on September 4, 5 2013, does not substantially further the resolution of this case. Fed. R. Evid. 403 (court may 6 exclude cumulative testimony); Lutz v. Glendale Union High School, 403 F.3d 1061, 1071 (9th 7 Cir. 2005) (district courts have authority to limit the number of witnesses testifying about a 8 particular fact). 9 For the reasons discussed above, plaintiff’s request to call inmate Perez as a witness at 10 trial is denied. 11 C. Inmate Harvey 12 Inmate Harvey’s declaration states, in relevant part, 13 2. In the latter part of August 2013, I was transferred from Pelican Bay State Prison to California State Prison at Sacramento (New 14 Folsom). I was placed on a bus with dozens of other inmates on a hunger strike, including prisoner Vincent Bruce. Bruce, myself and 15 others had been on a hunger strike for at least six weeks when the transfer occurred. No medical staff accompanied us for the ten hour 16 ride. Bruce and at least two other inmates became violently ill. Bruce began dry heaving and have severe dizzy spells. Another 17 inmate passed out. No medical attention was provided. 18 3. Upon arrival we were placed in filthy cells without cleaning materials and denied personal property, and adequate clothing. 19 Inmates were forced to use blankets as clothing (wrapped around them Indian style). 20 4. Bruce was placed in a cell below me and to my right. I was in cell 21 220 in the housing unit B8. 22 5. I am familiar with Doctor Nangalama. He was one of the senior or supervising doctors at New Folsom. He treated me on at least two 23 occasions. Dr. Nangalama refused to order any tests or examine me for cardiac problems while treating me at New Folsom. Due to his 24 inadequate medical care I suffered permanent heart damage during the three weeks I was under his care. 25 6. When the hunger strike ended on September 4, 2013, Mr. Bruce 26 indicated to me he was not going to end his fast until he was provided treatment for his severe constipation. He said it was so big and hard 27 he could feel it in his abdomen. As a designated representative of the hunger strike it was my responsibility to communicate with Mr. 28 Bruce and staff let me speak to him. 1 7. Bruce told me the next day that the medical staff were refusing to provide any exams to confirm the severity of his condition. I passed 2 this information on to some attorneys representing the hunger strikers. 3 8. At some point Bruce began eating again. 4 9. On or around September 10, 2013, Bruce, myself and other 5 inmates were put on a bus that was returning to Pelican Bay State Prison. Bruce was in serious pain and discomfort for the ride back. 6 Frequently wincing when the bus hit a rough part of the road. Bruce also was very tired and looked like he had not slept well for several 7 days. Before we were put on the bus none of us were examined by any medical staff. 8 9 (ECF No. 110 at 8-9.) 10 The statements in inmate Harvey’s declaration regarding the conditions of the bus ride 11 from PBSP to CSP-Sac are not relevant to this action. The statements in inmate Harvey’s 12 declaration regarding the conditions of the cells upon their arrival at CSP-Sac are not relevant to 13 this action. The statements in inmate Harvey’s declaration regarding the alleged inadequate 14 medical care he received from defendant Nangalama are not relevant to this action. Evidence of 15 defendant Nangalama’s alleged prior bad acts is also inadmissible pursuant to Federal Rule of 16 Evidence 404(b)(1) (evidence of a “crime, wrong or other act is not admissible to prove a 17 person’s character in order to show that on a particular occasion the person acted in accordance 18 with their character). 19 Inmate Harvey’s statement that plaintiff told him that medical staff were refusing to 20 provide him with medical exams is hearsay. In addition, it is unclear how inmate Harvey has 21 personal knowledge that medical staff were refusing to provide medical exams to plaintiff. Fed. 22 R. Evid. 602 (witness must have personal knowledge of subject testimony). It is also unclear 23 Inmate Harvey has personal knowledge that none of the inmates transferred back to PBSP were 24 examined by medical staff. Id. 25 In their opposition, defendants state that they do not object to the presence of inmate 26 Harvey at trial to the extent he proposes to testify regarding plaintiff’s condition during the bus 27 transport to PBSP on September 10, 2013. (ECF No. 112 at 7.) Inmate Harvey’s testimony 28 regarding his observations of plaintiff’s condition is relevant to his claims that defendants 1 | Clingman and Nangalama violated state and federal law by permitting him to be transferred to 2 | PBSP on that date. This testimony may also be relevant to plaintiff's claims that defendant 3 | Ikegbu failed to treat plaintiff's torn rectum. 4 The undersigned finds that inmate Harvey’s testimony regarding his observations of 5 | plaintiff's condition on the bus to PBSP on September 10, 2013 would substantially further the 6 | resolution of plaintiffs claims. The security risks and expense of inmate Harvey’s transportation 7 | do not outweigh the value of his testimony. The undersigned will later determine whether inmate 8 | Harvey may testify via video conference, which would reduce, if not eliminate, the security risks 9 | and expense of transporting him to court to testify. 10 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for an order to have 11 | incarcerated witnesses brought to trial (ECF No. 110) is granted with respect to inmate Harvey 12 | and his testimony concerning plaintiffs condition during the bus transport to PBSP on September 13 | 10, 2013; plaintiffs motion is denied in all other respects. 14 | Dated: August 21, 2019 Aectl Aharon 16 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 17 18 19 Br960.wit 20 21 22 23 24 25 26 27 28