(PC) Lewis v. Ugwueze ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DARONTA T. LEWIS, Case No. 1:20-cv-00596-SAB (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR ATTENDANCE OF WITNESSES AT 12 v. TRIAL 13 DR. KOKOR, (ECF No. 131) 14 Defendant. 15 16 Plaintiff Daronta T. Lewis is proceeding pro se and in forma pauperis in this civil rights 17 action filed pursuant to 42 U.S.C. § 1983. 18 This case is currently set for jury trial on December 13, 2022. 19 Currently before the Court is Plaintiff’s motion for the attendance of witnesses at trial, 20 filed on September 13, 2022. 21 I. 22 DISCUSSION 23 The uncertainty regarding whether or not the proposed witnesses are willing 24 to testify voluntarily does not preclude this Court from ordering their transportation. Rather, in 25 determining whether to grant Plaintiff's motion for the attendance of his proposed witnesses, 26 factors to be taken into consideration include (1) whether the inmate's presence will substantially 27 further the resolution of the case, (2) the security risks presented by the inmate's presence, and (3) the expense of transportation and security, and (4) whether the suit can be stayed until the 1 inmate is released without prejudice to the cause asserted. Wiggins v. County of Alameda, 717 2 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 3 1994) (district court did not abuse its discretion when it concluded the inconvenience and 4 expense of transporting inmate witness outweighed any benefit he could provide where the 5 importance of the witness’s testimony could not be determined), abrogated on other grounds 6 by Sandin v. Conner, 515 U.S. 472 (1995). 7 Plaintiff seeks the attendance of Registered Nurse F. Soto, Registered Nurse Lopez, 8 transport officers Johnson and J. Jimenez, and inmate Donald McKnight (CDCR No. AM6654). 9 Plaintiff’s motion must be denied. 10 A. Unincarcerated Witnesses 11 The Court's August 10, 2022 order, provided the requirements to obtain the attendance of 12 unincarcerated witnesses. (ECF No. 157 at 8-9.) Plaintiff is advised that it is his responsibility to 13 secure the attendance of any unincarcerated individuals who wish to testify voluntarily or refuse 14 to testify voluntarily pursuant to the procedures set forth in Rule 45 of the Federal Rules of Civil 15 Procedure. Plaintiff identifies four witnesses he wishes to call for trial. Neither witness is 16 incarcerated nor appears to be present voluntarily. 17 As pointed out in this court's scheduling order, a party seeking to compel the attendance 18 of a witness for trial must deposit fees for the witness in advance of the court subpoenaing them. 19 (Doc. No. 157 at 8-9.) That fee encompasses the $40.00 daily witness fee plus the costs of the 20 witness’s travel to and from the courthouse. 28 U.S.C. § 1821. The current mileage 21 reimbursement rate is set at $0.625 per mile.1 The round-trip distance witnesses Soto, Lopez, 22 Johnson and Jimenez to travel from California Substance Abuse Treatment Facility and State 23 Prison-Corcoran to the Fresno federal courthouse is 54 miles. At .0625 cents per mile 24 reimbursement rate, the cost to subpoena these witnesses would be $33.75 plus the $40.00 daily 25 witness fee for a total of $73.75. No statute authorizes the use of public funds to cover these 26 payments and plaintiff's in forma pauperis status does not obviate his need to pay them. For 27 each witness, Plaintiff must submit a money order made payable to the witness for the amounts 1 B. Incarcerated Witness 2 Plaintiff seeks the attendance of inmate witness Donald McKnight (CDCR No. 3 AM6654). In support of his request, Plaintiff submits the declaration of Mr. McKnight who 4 declares as follows: 5 I do hereby declare under Title II of the Americans With Disabilities Act section 504 of 6 Rehabilitation Act of 1973 discrimination of handicap/disabled persons clear, safe 7 passage access and unhindered range of motion. That it is a violation issue in E-Facility medical care office of Dr. F Ko-MD, I who is an American with disability, use 8 wheelchair or walker and have experienced unsafe clutter, space constriction, unsafe turning-non safe range of motion into and out of E-Facility hazardous doctor’s office, for 9 handicap-physically challenged inmates in wheelchairs, walkers, cane. I witness 1 handicap wheelchair inmates “poke halfway out”-into hallway of cramped medical 0 hallway, hazardous to inmates on crutches, cane, casts, walkers, leg braces, wheelchairs, or in the way of medical gurney, stretcher medical emergency path-delaying help response to heart attacks, seizures, stab[b]ed injured, assaulted, victims or staff. I witness 12 the registered nurses: Ms. Price, Roman, Fenn, Powell, Brown, failed owed duty to report ADA-hazard to Warden Sherman, or ADA-civil division. Do to nothing been changed at 13 all. These registered nurses have daily visuals of hazards to safety and security of ADA 14 patient inmates and fail duty owed to report Dr. F. Ko-MD and Warden Sherman, A.W. Brightwell, ADA Warden, thereby contributing to ADA hazardous violations. 15 (Declaration of Donald Knight, ECF No. 161 at 21.) 16 First, Inmate Knights’ observations of ADA compliance issues is not relevant to 17 | Plaintiff's retaliation or deliberate indifference claims against Dr. Kokor steming from the denial 18 | of narcotic pain medications. Second, Inmate McKnight was not an eyewitness or earwitness to 19 any alleged treatment by Dr. Kokor. His knowledge stems from observations of events apart 20 | from the incident at issue in this case. Inmate McKnight’s declaration is too vague and 21 | insufficient to show that the witness has actual firsthand knowledge of the relevant facts of the 22 | incident. Therefore, the Court will deny Plaintiff's request for Inmate Lemons' attendance. 23 94 | IT IS SO ORDERED. DAM Le 25 | Dated: _ October 11, 2022 ; 26 UNITED STATES MAGISTRATE JUDGE 27 28