(PC) Martinez v. Navarro ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ANTONIO MARTINEZ, 1:19-cv-00378-JLT-GSA-PC 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTENDANCE OF 13 vs. INCARCERATED WITNESS, CORY LATOUR 14 NAVARRO, et al., (ECF No. 80.) 15 Defendants. 16 I. BACKGROUND 17 Jose Antonio Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds with 19 Plaintiff’s original Complaint, filed on March 22, 2019, against defendants Correctional Officer 20 Navarro and Sergeant M. Navarro (“Defendants”) for use of excessive force in violation of the 21 Eighth Amendment.1 (ECF No. 1.) 22 This case is scheduled for trial on May 16, 2023, at 8:30 a.m. before the Honorable 23 Jennifer L. Thurston in Courtroom 4. (ECF No. 67.) A pretrial conference is scheduled for 24 March 27, 2023 at 1:30 p.m. before the Honorable Jennifer L. Thurston via Zoom video 25 conference or Zoom telephone number. (Id.) 26 27 28 1 On January 25, 2022, summary judgment was granted to Defendants Mares and Cruz, terminating them from this action. (ECF No. 47.) 1 On March 13, 2023, Plaintiff filed a motion for the attendance of an incarcerated witness 2 at trial. (ECF No. 80.) Defendants have not opposed the motion. 3 II. ATTENDANCE OF INMATE WITNESSES AT TRIAL 4 On November 14, 2022, the Court issued a Second Scheduling Order advising Plaintiff 5 of the requirements for bringing inmate witnesses to trial. (ECF No. 64 at 2:21-4:6 ¶¶1 &2.) 6 Plaintiff was informed that the court must issue an order before Plaintiff’s incarcerated witnesses 7 can come to court to testify. (Id.) Plaintiff was advised that he must file a Motion for Attendance 8 of Incarcerated Witnesses, stating the name, address, and prison identification number of each 9 such witness, accompanied by declarations by Plaintiff or the witnesses, showing whether each 10 witness is willing to testify and has actual knowledge of relevant facts. (Id.) Plaintiff was also 11 advised that the declaration must show that the prospective witness was an eyewitness or ear- 12 witness to relevant facts, and must be specific about the incident at issue in this case, including 13 when and where it occurred, who was present, and how the prospective witness happened to be 14 in a position to see or hear what occurred at the time it occurred. (Id.) 15 In determining whether to grant Plaintiff’s motion for the attendance of incarcerated 16 witnesses, the Court considers the following factors: (1) whether the inmate’s presence 17 will substantially further the resolution of the case, (2) the security risks presented by the inmate’s 18 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed 19 until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 20 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 21 (9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience 22 and expense of transporting inmate witness outweighed any benefit he could provide where the 23 importance of the witness’s testimony could not be determined), abrogated on other grounds 24 by Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). 25 III. PLAINTIFF’S MOTION 26 Plaintiff seeks to bring one incarcerated witness to testify at trial. Plaintiff gives two 27 conflicting T numbers for Cory Latour, #T-36031 (ECF No. 68), and #T-38031 (ECF No 80). 28 The court has determined that the correct T number is T-36031. Plaintiff states that this witness 1 is incarcerated at Kern Valley State Prison in Delano, California. Plaintiff has provided the name, 2 address, and two identification numbers of the prospective witness, see above. Plaintiff also 3 submitted a declaration by Cory Latour dated February 19, 2017, in which Latour declares that 4 he was an ear-witness to the excessive force at issue in this case and describes what he heard. 5 (ECF No. 80 at 3.) Plaintiff states that six years ago Cory Latour told him that he was willing to 6 testify at the trial in this case; however, Plaintiff also states that according to Defendants’ counsel, 7 Cory Latour now refuses to volunteer his testimony at trial. 8 IV. DISCUSSION 9 Plaintiff has provided evidence that in February 2017, prospective witness Cory Latour 10 declared that he was an ear-witness to the excessive force incident at issue in this case. There is 11 no evidence, however, that Cory Latour is now willing to testify at trial and in fact, Plaintiff 12 indicates that Latour now refuses to testify voluntarily. 13 As provided in the Court’s November 14, 2022 Second Scheduling Order, a party may 14 indicate an inmate’s willingness to testify voluntarily by the party’s own declaration or by the 15 inmate’s declaration. Plaintiff states that Cory Latour told him six years ago that he (Latour) was 16 willing to testify voluntarily, but now Latour has apparently changed his mind. This does not 17 indicate a current willingness. However, the Court finds that Latour has relevant testimony and 18 that a witness’s unwillingness to testify is not grounds to preclude him from being called to 19 testify. 20 “Both sides in a trial have the right to call witnesses, and the power to compel witness 21 testimony is essential to our system of justice.” Barnett v. Norman, 782 F.3d 417, 422 (9th Cir. 22 2015). A judge cannot “allow a witness to refuse to testify because he would prefer not to answer 23 a question.” (Id.) “The public’s interest in full disclosure and the fair administration of justice 24 overrides concerns that testimony might be inconvenient, burdensome, or harmful to a witness’s 25 social or economic status.” Id. 26 The Court finds that prospective inmate witness Cory Latour appears to have personal 27 knowledge of relevant facts. Thus, the Court must determine whether to require this inmate’s 28 presence at trial despite the possibility that he may be unwilling to testify voluntarily. 1 Plaintiff’s motion indicates that inmate Cory Latour would be able to provide earwitness 2 testimony bearing directly on Plaintiff’s claims and the credibility of the parties. There is nothing 3 before the Court to indicate that the prospective witness presents more than an average security 4 risk. (See Hernandez v. Hernandez, No. 1:13-cv-01625-MJS (PC) (E.D.Cal. June 18, 2015), 5 2015 U.S.Dist.LEXIS 79439, at *9.) A review of the State of California’s Inmate Locator 6 indicates that inmate Latour is housed at Kern Valley State Prison, thus it does not appear that 7 the inmate’s attendance at trial would involve extraordinary expense, nor extraordinary distance 8 of travel. Id. 9 In light of these factors, the Court concludes that inmate Latour’s presence would 10 substantially further resolution of the case, and his “unwillingness to testify does not warrant 11 denial of Plaintiff’s motion.” Id. at 9-10. Although such efforts ultimately may prove fruitless, 12 the testimony of the witness at issue here is central to Plaintiff’s case and the Court concludes 13 that Plaintiff must have the opportunity to attempt to elicit such testimony. Id. at 10. For the 14 foregoing reasons, the Court shall grant Plaintiff’s motion to bring inmate Cory Latour to trial 15 without Plaintiff’s assurance that Latour is currently willing to testify voluntarily at trial. The 16 Court will separately issue a writ of habeas corpus ad testificandum for the presence of inmate 17 Latour at trial. 18 V. CONCLUSION 19 Based on the foregoing, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s motion for the attendance of incarcerated witness Cory Latour, #T- 21 36031, to testify at trial, filed on March 13, 2023, is GRANTED; and 22 2. The Court will separately issue a writ of habeas corpus ad testificandum for the 23 presence of inmate Cory Latour at trial. 24 IT IS SO ORDERED. 25 26 Dated: March 24, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28