(PC) Villery v. Sanders ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JARED M. VILLERY, Case No. 1:18-cv-01067-ADA-HBK (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTENDANCE OF INCARCERATED 13 v. WITNESS 14 LUIS MACHADO, EDGAR COONTZ, (Doc. No. 58) WILLIAM GIBBONS, TRAVIS 15 ALATORRE, 16 Defendants. 17 18 Plaintiff, a state prisoner, who is proceeding pro se and in forma pauperis on his 19 Complaint filed under 42 U.S.C. § 1983, filed a motion for the attendance of an incarcerated 20 witness on September 23, 2022. (Doc. No. 58). Defendants did not file an opposition and the 21 time to do so has expired. See docket; see also L.R. 230(l). 22 Plaintiff seeks to bring one incarcerated witness to trial: Riginald Hardin. (Doc. No. 58). 23 The gravamen of Plaintiff’s complaint is that Defendants violated his First Amendment rights by 24 retaliating against him for filing grievances. (Doc. No. 1). The complaint concerns a series of 25 incidents that occurred on various dates between August and September 2014. (Id.). Mr. Hardin 26 purportedly heard and saw an incident between Defendant Alatorre and Plaintiff, which occurred 27 on September 10, 2014. (Doc. No. 58 at 2-3). 28 “The determination whether to issue a writ of habeas corpus ad testificandum rests within 1 the sound discretion of the district court.” Cummings v. Adams, 2006 U.S. Dist. LEXIS 9381, *6, 2 2006 WL 449095 (E.D. Cal. Feb. 17, 2006). Accord Walker v. Sumner, 14 F.3d 1415, 1422 (9th 3 Cir. 1994). In determining whether to grant a motion for the attendance of incarcerated 4 witnesses, the court considers the following factors: (1) whether the inmate’s presence will 5 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 6 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed 7 until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 8 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983). See also Lopez v. Cate, 2016 WL 3940341, at 9 *2 (E.D. Cal. July 20, 2016). 10 After conducting a “cost-benefit analysis regarding whether the inmate should come to 11 court,” Cummings, 2006 U.S. Dist. LEXIS 9381 at *7, the Court finds Mr. Hardin should be 12 brought to court to testify. As stated supra, Defendants did not file an opposition to Plaintiff’s 13 motion. Plaintiff has shown that the testimony of Mr. Hardin will further the resolution of this 14 case. Mr. Hardin is an ear and eyewitness to events relevant to Plaintiff’s case that occurred 15 between Plaintiff and Defendant Alatorre on September 10, 2014. There is no indication that 16 transportation of Mr. Hardin presents a security risk, and neither party has argued that the case 17 should be stayed until Mr. Hardin is released. Moreover, given the age of this case, staying the 18 case would be prejudicial. There are also no arguments that the transportation of Mr. Hardin is 19 not cost effective. 20 In ruling on this motion, the Court is not making any evidentiary rulings. The Court is 21 only conducting a cost-benefit analysis to determine whether Mr. Hardin should be brought to 22 court as a witness. Thus, nothing in this order prevents Defendants from filing motions in limine 23 to exclude testimony or witnesses, or from objecting to testimony at the trial, or requesting that 24 Mr. Hardin be permitted to testify via videoconference. 25 Accordingly, it is ORDERED: 26 1. Plaintiff’s motion for the attendance of an incarcerated witness (Doc. No. 58) is 27 GRANTED. 28 2. Absent further order of the Court, approximately one month before the trial, the 1 | Court will issue writs of habeas corpus ad testificandum to have Riginald Hardin, CDCR #G- 2 | 52257, brought to court to testify at trial. 3 3. IT IS FURTHER ORDERED that the parties shall meet and confer about whether 4 | the witness identified in this motion should appear by video. If there is an agreement about any 5 || witness, the parties shall file that agreement no later than November 25, 2022, in which case the 6 | Court will issue writs for video conference appearance for this witness. If the parties do not file a 7 | notice by this date, the Court will issue writs for in-person testimony for this witness. 8 4. The Clerk of Court shall mail a copy of this Order on inmate Riginald Hardin, 9 | CDCR #G-52257 so inmate Hardin is aware that his attendance and testimony is required in the 10 | trial in this matter. 11 Dated: _ October 24, 2022 Mihaw. □□□ foareh Yack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28