(PC) Petillo v. Jasso ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, No. 1:21-cv-01401-SAB (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION REGARDING 13 v. MOTION FOR ATTENDANCE OF INCARCERATED WITNESS SOLOMON 14 REYNALDO JASSO, et al., (ECF No. 99) 15 Defendants. 16 17 Plaintiff Isaiah J. Petillo is appearing pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 This case is currently set for jury trial on January 23, 2023, before Magistrate Judge 20 Stanley A. Boone. 21 Currently before the Court is Plaintiff’s motion for reconsideration of the denial of his 22 motion for attendance of incarcerated witness Solomon, filed October 25, 2023. 23 Defendants filed a statement of non-opposition to Plaintiff’s motion for the attendance of 24 incarcerated witness Solomon, but request that discovery be re-opened for the limited purpose 25 deposition Solomon prior to trial, recognizing that if they are unable to depose Solomon such 26 would not be cause to continue the trial date. (ECF No. 105.) 27 Federal Rule of Civil Procedure 60(b)(6) allows the court to relieve a party from an order 28 for any reason that justifies relief. Rule 60(b)(6) is to be used sparingly as an equitable remedy to 1 prevent manifest injustice and is to be utilized only where extraordinary circumstances exist. 2 Harvest v. Castro, 531 F.3d 737, 749 (9th Cir.2008) (quotations marks and citation omitted). The 3 moving party must demonstrate both injury and circumstances beyond his control. Id. (quotation 4 marks and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff 5 show “what new or different facts or circumstances are claimed to exist which did not exist or 6 were not shown upon such prior motion, or what other grounds exist for the motion,” and “why 7 the facts or circumstances were not shown at the time of the prior motion.” 8 “A motion for reconsideration should not be granted, absent highly unusual 9 circumstances, unless the district court is presented with newly discovered evidence, committed 10 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 11 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009) (internal quotations marks 12 and citations omitted), and “[a] party seeking reconsideration must show more than a 13 disagreement with the Court's decision, and recapitulation ...” of that which was already 14 considered by the Court in rendering its decision, U.S. v. Westlands Water Dist., 134 F.Supp.2d 15 1111, 1131 (E.D.Cal.2001) (internal quotation marks and citation omitted). 16 In determining whether to grant Plaintiff’s motion for the attendance of his proposed 17 witnesses, factors to be taken into consideration include (1) whether the inmate’s presence will 18 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 19 presence, and (3) the expense of transportation and security, and (4) whether the suit can be 20 stayed until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 21 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 22 (9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience 23 and expense of transporting inmate witness outweighed any benefit he could provide where the 24 importance of the witness’s testimony could not be determined), abrogated on other grounds by 25 Sandin v. Conner, 515 U.S. 472 (1995). 26 Based on Plaintiff’s representation and Defendants’ non-opposition, that inmate Keawon 27 Solomon is “an eye and ear” witness to the incident in question, Plaintiff’s motion shall be 28 granted. In light of this ruling, the Court will re-open discovery for the limited purpose of eee ee IE IID NE II OS IE OS OSE! IIE OD 1 | allowing Defendants to depose inmate Solomon if able to do so prior to trial.! However, the 2 | January 23, 2023, jury trial date is firm and will not be continued under any circumstances related 3 || to deposing and/or transporting inmate Solomon to the trial.” 4 Based on the foregoing, it is HEREBY ORDERED that: 5 1. Plaintiff's motion for reconsideration filed on October 25, 2023 (ECF No. 99), is 6 granted; and 7 2. Plaintiff's motion for the attendance of incarcerated witness, Keawon Solomon, is 8 granted; 9 3. Defendants may depose inmate Solomon, if available to do prior to the jury trial on 10 January 23, 2023; and 11 4. The Court will issue any necessary writ of habeas corpus ad testificandum for the 12 attendance of inmate Solomon in due course. 13 14 IT IS SO ORDERED. TA. ee 15 | Dated: _ November 15, 2023 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 ' Tn considering whether to grant a motion to amend the scheduling order and re-open discovery, the court is to 23 consider: “1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the 24 court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence.” City of Pomona v. SQM N. 25 Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995), vacated on other grounds, 520 U.S. 939 (1997)). Upon consideration of these 26 factors, the Court finds good cause to allow Defendants to depose inmate Solomon, if available to do so, prior to trial in this matter. 27 2 “Based upon publicly available information, defense counsel anticipates that Mr. Solomon will return to the custody of the California Department of Corrections and Rehabilitation (CDCR) before trial of this matter commences.” 28 || (ECENo. 105 at 2.)