Opinion
CASE NO. 1:12-cv-00392-LJO-MJS (PC)
06-06-2016
COLIN M. RANDOLPH, Plaintiff, v. B. NIX, et al., Defendants.
ORDER GRANTING MOTION FOR THE ATTENDANCE OF INCARCERATED WITNESS AT TRIAL
(ECF No. 112)
I. PROCEDURAL HISTORY
Plaintiff Colin M. Randolph, a state prisoner proceeding in forma pauperis, filed this this civil rights action pursuant to 42 U.S.C. § 1983 on March 15, 2012. On February 17, 2016, counsel was appointed to represent Plaintiff. (ECF No. 99.) The action proceeds on Plaintiff's second amended complaint against Defendant J. Akanno for violating Plaintiff's right to adequate medical care under the Eighth Amendment of the United States Constitution. The events at issue occurred at Kern Valley State Prison in Delano, California, and arise out of Defendant Akanno's alleged delay in providing Plaintiff with a lower bunk as an accommodation for his vision and mobility impairments. Trial is set for August 23, 2016 before U.S. District Judge Lawrence J. O'Neill.
Before the Court is Plaintiff's motion for the attendance of an incarcerated witness at trial. (ECF No. 112.) Defendant filed a response (ECF No. 116), and Plaintiff filed a reply (ECF No. 119). The matter is submitted.
II. ARGUMENTS
Plaintiff seeks to secure the attendance of Dupriest Jermaine Green, CDCR Number T-12804. Green allegedly was Plaintiff's cell mate during the time Plaintiff was under Defendant's care. He witnessed Plaintiff's fall from an upper bunk, injuries stemming therefrom, and the effect of those injuries on Plaintiff's life. Green previously provided a declaration regarding Plaintiff's fall and injuries; however, he has not been contacted regarding his willingness to provide testimony at trial. He is the only eyewitness to Plaintiff's injury.
Defendant does not object to Green's testimony but asks that Green testify through videoconference from Kern Valley State Prison. Defendant points out that Green is serving a sentence of life with the possibility of parole for the offenses of robbery and assault with a semi-automatic weapon. He has incurred eight disciplinary violations in the past five years resulting in loss of credits. Furthermore, permitting Green to testify through videoconference would alleviate the costs of transporting him to trial.
Plaintiff responds that Green should be permitted to testify in-person at trial, and the benefits of doing so greatly outweigh security risks and costs. He points out that Defendant has not shown that Green's disciplinary proceedings involved acts of violence. Moreover, Green's convictions are more than fifteen years old and the costs of transporting him to Fresno for trial are relatively low.
III. LEGAL STANDARD
The Court considers the following factors in determining whether an inmate should be permitted to attend trial in person:
(1) whether the prisoner's presence will substantially further the resolution of the case; (2) security risks presented by the prisoner's presence; (3) the expense of the prisoner's transportation and safekeeping; and (4) whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted.[]Wiggins v. Alameda Cnty., 717 F.2d 466, 468 n.1 (9th Cir.1983) (citation omitted).
The Court has no information regarding Mr. Green's release date and thus this factor is not considered. --------
IV. DISCUSSION
Here, as to the first factor, there is no dispute that Green's testimony is relevant to this case.
As to the second factor, security risks are inherent in the presence of any prisoner in Court. The Court notes that violent offenders present in Court on a regular basis, and regularly do so without incident. The question, then, is whether Mr. Green presents a heightened security risk beyond the mere fact that he is a prisoner. Foster v. Enenmoh, No. 1:08-cv-01849-LJO-SKO-PC, 2013 WL 6799177 at *2 (E.D. Cal. December 20, 2013). Mr. Green's conviction is more than fifteen years old and the nature of his disciplinary offenses is unknown. The Court does not find sufficient basis to conclude that Mr. Green presents such an excessive risk as to require deviation from the norm of in-person testimony. See id.
Finally, Mr. Green is incarcerated at a prison "close enough to the courthouse that [his] transportation would present no exceptional issues from a cost standpoint." Id.
In-person witness testimony is the rule and creating an exception to that rule may only be permitted (1) for good cause, (2) in compelling circumstances, and (3) with appropriate safeguards. Fed. R. Civ. P. 43(a). For the reasons stated above, the Court does not find compelling circumstances weigh in favor of deviating from Rule 43
V. CONCLUSION AND ORDER
Plaintiff's motion for the attendance of incarcerated witness is HEREBY GRANTED. At the appropriate time, the Court will issue a writ of habeas corpus ad testificandum directing the production of Dupriest Jermaine Green, # T-12804, for trial. IT IS SO ORDERED.
Dated: June 6, 2016
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE