(PC) Gibbs v. Webb ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT A. GIBBS, No. 2:18-cv-02817-DAD-DB (PS) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR ISSUANCE OF SUBPOENA 14 J. WEBB, et al., (Doc. No. 88) 15 Defendants. 16 17 Plaintiff Robert A. Gibbs, who was formerly confined at the Shasta County Jail, proceeds 18 pro se in this civil rights action under 42 U.S.C. § 1983. Plaintiff currently proceeds on the 19 following three causes of action: (1) First Amendment retaliation against Deputy Webb, Sergeant 20 Reed, Sergeant Rodgers, and Captain Kent; (2) Fourteenth Amendment excessive force against 21 Deputy Webb; and (3) Fourteenth Amendment failure to protect against Deputy Barnhart. The 22 trial of this case is set for March 4, 2024, at 9:00 a.m. (Doc. No. 86.) 23 Plaintiff has filed a motion requesting issuance of a subpoena for the transport and 24 attendance of an incarcerated witness, Phillip Brooks. (Doc. No. 88.) Defendants filed objections 25 to the motion. (Doc. No. 89.) The court has discretion regarding whether to issue a writ of 26 habeas corpus ad testificandum for an incarcerated witness to testify. See Walker v. Sumner, 14 27 F.3d 1415, 1422 (9th Cir. 1994) (finding no abuse of discretion in the district court’s denial of 28 such a writ). For the reasons set forth below, the court will deny plaintiff’s motion. 1 First, the pending motion is untimely and lacks adequate explanation for its untimeliness. 2 The deadline for plaintiff to file his pretrial statement and any motions for attendance of 3 incarcerated witnesses was May 25, 2023. (Doc. No. 61.) On June 15, 2023, plaintiff filed a late 4 pretrial statement. (Doc. No. 66.) The court granted plaintiff an extension of time and deemed 5 the pretrial statement timely filed. (Doc. No. 69.) Plaintiff did not, however, file any motions for 6 attendance of incarcerated witnesses until the present motion was filed on February 9, 2024. 7 Plaintiff’s current motion does not provide any explanation for the belated nature of the current 8 request. 9 Second, the motion is procedurally defective. By order dated January 3, 2023, plaintiff 10 was informed of the procedures required to obtain the attendance of incarcerated witnesses, 11 including the need to indicate whether a witness is willing to testify voluntarily without being 12 subpoenaed. (Doc. No. 61 at 3.) As to the requested witness Phillip Brooks, plaintiff did not 13 comply with these procedures previously or in the present motion. Plaintiff has not filed an 14 affidavit indicating whether Phillip Brooks is willing to testify voluntarily. This omission is 15 substantial because, in exercising discretion regarding whether to issue a writ of habeas corpus ad 16 testificandum, the court considers factors including whether the inmate witnesses’ presence will 17 substantially further the resolution of the case as well as the expense of the prisoner’s 18 transportation and safekeeping. See Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th 19 Cir. 1983). If the court does not know whether an incarcerated witness is willing to testify 20 voluntarily, then these factors weigh heavily against transporting the witness. 21 Third, plaintiff did not provide the address for Phillip Brooks. Although plaintiff states 22 Phillip Brooks is currently an inmate at Shasta County Jail, there is no person by the name of 23 Phillip Brooks in custody at the Shasta County Jail.1 24 Finally, the court notes that it believes plaintiff indicated during a status conference on 25 January 16, 2024 that he wished to secure the attendance of a witness who was recently 26 incarcerated or recently re-incarcerated. The court has located an individual by the name of 27 1 See Shasta County in custody list, updated 02/21/24 15:20:02, 28 https://apps.shastacounty.gov/In_Custody/incustody.aspx, last visited 02/21/24. 1 | Phillip Brooks in custody of the California Department of Corrections and Rehabilitation 2 | (“CDCR”) at Pelican Bay State Prison. However, this individual has been in custody of the 3 | California Department of Corrections and Rehabilitation (“CDCR”) since November 30, 2023.” 4 | Assuming this is the individual plaintiff seeks to subpoena and have transported, and even 5 || assuming, additionally, that the witness was not incarcerated when plaintiff filed his pretrial 6 | statement, plaintiffs delay in filing the present motion weighs against issuance of the requested 7 | subpoena. 8 As set forth, plaintiff has been on notice of the procedures required to obtain the 9 | attendance of incarcerated witnesses since January 3, 2023. (Doc. No. 61.) In addition, by order 10 | dated June 30, 2023, plaintiff was informed that to the extent he wished to secure the testimony of 11 | any incarcerated witnesses, no such orders would issue because plaintiff had not complied with 12 | the procedures set forth. (Doc. No. 70 at 4.) Under the circumstances, the court will deny 13 | plaintiff's untimely and procedurally deficient request for issuance of a subpoena for the transport 14 | and attendance of Phillip Brooks for the trial of this case. 15 In accordance with the above, plaintiffs motion requesting issuance of a subpoena for the 16 | transport and attendance of an incarcerated witness (Doc. No. 88), is denied. 17 IT IS SO ORDERED. | pated: _ February 22, 2024 Da A. 2, ye 19 DALE A. DROZD 30 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 |—$_ ——_——_ > See CDCR inmate locator, 28 | https://apps.cder.ca.gov/ciris/results?lastName=Brooks&firstName=Phillip, last visited 02/21/24.