1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAKEITH L. MCCOY, Case No. 1:15-cv-00768-KES-HBK (PC) 12 Plaintiff, ORDER GRANTING MOTION FOR ATTENDANCE OF INCARCERATED 13 v. WITNESS AND SETTING DEADLINES AND FEES FOR NONINCARCERATED 14 A. HOLGUIN, et al., WITNESSES 15 Defendants. (Doc. Nos. 238, 239) 16 17 Pending before the Court is Plaintiff Lakeith L. McCoy’s Motion for Attendance of 18 Incarcerated Witness, filed November 7, 2024. (Doc. No. 238). Defendants did not file any 19 opposition to Plaintiff’s Motion and the time to do so has expired. (Doc. No. 237 at 4); see also 20 docket. On November 7, 2024, Plaintiff also filed a Witness List for his trial, currently scheduled 21 for February 25, 2025 before District Judge Kirk E. Sherriff. (Doc. No. 239). For the reasons set 22 forth below, the Court grants Plaintiff’s Motion and sets deadlines and fees for Plaintiff to secure 23 the attendance of non-incarcerated witnesses. 24 MOTION FOR ATTENDANCE OF INCARCERATED WITNESS 25 In determining whether to grant Plaintiff’s motion for the attendance of incarcerated 26 witnesses, the Court considers the following factors: (1) whether the inmate’s presence will 27 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 28 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed 1 until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 2 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 3 (9th Cir. 1994) (finding district court did not abuse its discretion when it concluded the 4 inconvenience and expense of transporting inmate witness outweighed any benefit he could 5 provide where the importance of the witness’s testimony could not be determined), abrogated on 6 other grounds by Sandin v. Conner, 515 U.S. 472 (1995). 7 Plaintiff’s Motion identifies a single incarcerated witness that he wishes to produce at 8 trial, Joshua Howard, CDCR No. T47638, currently incarcerated at Kern Valley State Prison. 9 (Doc. No. 238 at 1). Plaintiff asserts that Howard has first-hand knowledge of the incident on 10 March 12, 2015, when Plaintiff alleges Defendants subjected him to excessive use of force or 11 failed to intervene in their colleagues’ excessive use of force. (Id. at 2). In particular, Plaintiff 12 states that Howard was in the medical unit when Plaintiff was escorted there by Defendant 13 Montanez and will testify, inter alia, that Montanez was involved in the March 12, 2015 14 incident—contrary to his claims—and that Plaintiff looked like he had just been severely beaten. 15 (Id. at 3). Plaintiff provides a declaration from Inmate Howard attesting to these and other facts. 16 (Id. at 7-8). 17 The Court finds this proposed testimony will substantially further the resolution of the 18 case by potentially impeaching the statements of one of the Defendants; it will also provide 19 eyewitness testimony as to Plaintiff’s injuries and the involvement of Defendant Montanez in the 20 events of March 12, 2015. Defendants have not submitted any opposition suggesting that Inmate 21 Howard’s presence will pose a security risk if brought to court nor that costs of transferring him 22 to Court are substantial. Howard is currently incarcerated at Kern Valley State Prison, roughly 80 23 miles from the U.S. District Court in Fresno, thus the transportation involved in transferring 24 Plaintiff is significant but not obviously prohibitive. Moreover, Plaintiff indicates that Howard 25 prefers to testify remotely (Doc. No. 238 at 5 ¶ 5), a request that the undersigned will not rule on 26 at this time but which would, if granted, obviate any security or cost concerns.1 Turning to the 27 1 Under Federal Rule of Civil Procedure 43(a), the Court may permit testimony in open court by 28 contemporaneous video transmission “[f]or good cause in compelling circumstances and with appropriate 1 fourth County of Alameda factor, information obtained from CDCR’s inmate locator website 2 indicates that Inmate Howard will not become eligible for parole consideration until April 2034, 3 thus a stay of the action until Howard is released would unreasonably delay this already stale 4 case. Based on the analysis above, the Court finds it appropriate to grant Plaintiff’s Motion and 5 permit Inmate Howard to testify at trial. 6 PLAINTIFF’S REQUESTED NONINCARCERATED WITNESSES 7 Plaintiff lists six non-incarcerated witnesses he wishes to subpoena for trial. (Doc. No. 8 239). As the Court previously advised Plaintiff, because he is no longer proceeding in forma 9 pauperis he is not entitled to service of the subpoenas by the United States Marshals Service. 10 (See Doc. No. 61); 28 U.S.C. § 1915d; 28 U.S.C. 566(c). 11 As the Court also previously advised Plaintiff, several of his non-incarcerated witnesses 12 appear to be located more than 100 miles from the location set for trial. (See Doc. No. 239). 13 Under Rule 45 of the Federal Rules of Civil Procedure, a witness who resides more than 100 14 miles from the location set for trial is beyond the court’s subpoena power unless: 15 [the location for trial is] within the state where the person resides, is employed, or regularly transacts business in person, [and] . . . the 16 person (i) is a party or party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. 17 Fed. R. Civ. P. 45(c)(1)(B); see also Dooley v. Nevada Gold Mines, LLC, 2022 WL 867265, at *3 18 (D. Nev. Mar. 23, 2022) (noting that “federal courts can compel a witness to testify” if the 19 conditions of Fed. R. Civ. P. 45(c)(1)(B) are met). Accordingly, provided Plaintiff submits 20 witness fees sufficient to defray the expenses of these witnesses to attend trial, including 21 overnight lodging, the Court will issue subpoenas for their attendance, which Plaintiff will then 22 be required to serve. 23 The Court notes that two of Plaintiff’s non-incarcerated witnesses, J. Jones and Rachel 24 DeLuna are also included in Defendants’ most recent witness list. (See Doc. No. 116 at 4-5). If 25
26 safeguards[.]” See Barnett v. Gamboa, 2015 WL 13215676, at *2 (E.D. Cal. Dec. 18, 2015) (granting defendants’ request that two incarcerated witnesses located 400 miles from the courthouse be permitted to 27 testify remotely due to the “significant expenses regarding transportation and substantial security concerns for transferring these inmates witnesses to court”). The Parties may wish to address this issue at the 28 Pretrial Conference with the District Judge. 1 Defendants include those two individuals on their witness list, which is due to be submitted with 2 Defendants’ amended pretrial statement on November 25, 2024, the Court will not require 3 Plaintiff to issue subpoenas or pay witness fees for those witnesses.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAKEITH L. MCCOY, Case No. 1:15-cv-00768-KES-HBK (PC) 12 Plaintiff, ORDER GRANTING MOTION FOR ATTENDANCE OF INCARCERATED 13 v. WITNESS AND SETTING DEADLINES AND FEES FOR NONINCARCERATED 14 A. HOLGUIN, et al., WITNESSES 15 Defendants. (Doc. Nos. 238, 239) 16 17 Pending before the Court is Plaintiff Lakeith L. McCoy’s Motion for Attendance of 18 Incarcerated Witness, filed November 7, 2024. (Doc. No. 238). Defendants did not file any 19 opposition to Plaintiff’s Motion and the time to do so has expired. (Doc. No. 237 at 4); see also 20 docket. On November 7, 2024, Plaintiff also filed a Witness List for his trial, currently scheduled 21 for February 25, 2025 before District Judge Kirk E. Sherriff. (Doc. No. 239). For the reasons set 22 forth below, the Court grants Plaintiff’s Motion and sets deadlines and fees for Plaintiff to secure 23 the attendance of non-incarcerated witnesses. 24 MOTION FOR ATTENDANCE OF INCARCERATED WITNESS 25 In determining whether to grant Plaintiff’s motion for the attendance of incarcerated 26 witnesses, the Court considers the following factors: (1) whether the inmate’s presence will 27 substantially further the resolution of the case, (2) the security risks presented by the inmate’s 28 presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed 1 until the inmate is released without prejudice to the cause asserted. Wiggins v. County of 2 Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 3 (9th Cir. 1994) (finding district court did not abuse its discretion when it concluded the 4 inconvenience and expense of transporting inmate witness outweighed any benefit he could 5 provide where the importance of the witness’s testimony could not be determined), abrogated on 6 other grounds by Sandin v. Conner, 515 U.S. 472 (1995). 7 Plaintiff’s Motion identifies a single incarcerated witness that he wishes to produce at 8 trial, Joshua Howard, CDCR No. T47638, currently incarcerated at Kern Valley State Prison. 9 (Doc. No. 238 at 1). Plaintiff asserts that Howard has first-hand knowledge of the incident on 10 March 12, 2015, when Plaintiff alleges Defendants subjected him to excessive use of force or 11 failed to intervene in their colleagues’ excessive use of force. (Id. at 2). In particular, Plaintiff 12 states that Howard was in the medical unit when Plaintiff was escorted there by Defendant 13 Montanez and will testify, inter alia, that Montanez was involved in the March 12, 2015 14 incident—contrary to his claims—and that Plaintiff looked like he had just been severely beaten. 15 (Id. at 3). Plaintiff provides a declaration from Inmate Howard attesting to these and other facts. 16 (Id. at 7-8). 17 The Court finds this proposed testimony will substantially further the resolution of the 18 case by potentially impeaching the statements of one of the Defendants; it will also provide 19 eyewitness testimony as to Plaintiff’s injuries and the involvement of Defendant Montanez in the 20 events of March 12, 2015. Defendants have not submitted any opposition suggesting that Inmate 21 Howard’s presence will pose a security risk if brought to court nor that costs of transferring him 22 to Court are substantial. Howard is currently incarcerated at Kern Valley State Prison, roughly 80 23 miles from the U.S. District Court in Fresno, thus the transportation involved in transferring 24 Plaintiff is significant but not obviously prohibitive. Moreover, Plaintiff indicates that Howard 25 prefers to testify remotely (Doc. No. 238 at 5 ¶ 5), a request that the undersigned will not rule on 26 at this time but which would, if granted, obviate any security or cost concerns.1 Turning to the 27 1 Under Federal Rule of Civil Procedure 43(a), the Court may permit testimony in open court by 28 contemporaneous video transmission “[f]or good cause in compelling circumstances and with appropriate 1 fourth County of Alameda factor, information obtained from CDCR’s inmate locator website 2 indicates that Inmate Howard will not become eligible for parole consideration until April 2034, 3 thus a stay of the action until Howard is released would unreasonably delay this already stale 4 case. Based on the analysis above, the Court finds it appropriate to grant Plaintiff’s Motion and 5 permit Inmate Howard to testify at trial. 6 PLAINTIFF’S REQUESTED NONINCARCERATED WITNESSES 7 Plaintiff lists six non-incarcerated witnesses he wishes to subpoena for trial. (Doc. No. 8 239). As the Court previously advised Plaintiff, because he is no longer proceeding in forma 9 pauperis he is not entitled to service of the subpoenas by the United States Marshals Service. 10 (See Doc. No. 61); 28 U.S.C. § 1915d; 28 U.S.C. 566(c). 11 As the Court also previously advised Plaintiff, several of his non-incarcerated witnesses 12 appear to be located more than 100 miles from the location set for trial. (See Doc. No. 239). 13 Under Rule 45 of the Federal Rules of Civil Procedure, a witness who resides more than 100 14 miles from the location set for trial is beyond the court’s subpoena power unless: 15 [the location for trial is] within the state where the person resides, is employed, or regularly transacts business in person, [and] . . . the 16 person (i) is a party or party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. 17 Fed. R. Civ. P. 45(c)(1)(B); see also Dooley v. Nevada Gold Mines, LLC, 2022 WL 867265, at *3 18 (D. Nev. Mar. 23, 2022) (noting that “federal courts can compel a witness to testify” if the 19 conditions of Fed. R. Civ. P. 45(c)(1)(B) are met). Accordingly, provided Plaintiff submits 20 witness fees sufficient to defray the expenses of these witnesses to attend trial, including 21 overnight lodging, the Court will issue subpoenas for their attendance, which Plaintiff will then 22 be required to serve. 23 The Court notes that two of Plaintiff’s non-incarcerated witnesses, J. Jones and Rachel 24 DeLuna are also included in Defendants’ most recent witness list. (See Doc. No. 116 at 4-5). If 25
26 safeguards[.]” See Barnett v. Gamboa, 2015 WL 13215676, at *2 (E.D. Cal. Dec. 18, 2015) (granting defendants’ request that two incarcerated witnesses located 400 miles from the courthouse be permitted to 27 testify remotely due to the “significant expenses regarding transportation and substantial security concerns for transferring these inmates witnesses to court”). The Parties may wish to address this issue at the 28 Pretrial Conference with the District Judge. 1 Defendants include those two individuals on their witness list, which is due to be submitted with 2 Defendants’ amended pretrial statement on November 25, 2024, the Court will not require 3 Plaintiff to issue subpoenas or pay witness fees for those witnesses. Thus, Plaintiff should review 4 Defendants’ Pretrial Statement before submitting any witness fees for DeLuna and Jones. 5 The estimated cost for each witness (including DeLuna and Jones, in the event 6 Defendants’ do not intend to bring them to trial) is indicated below:
7 Name Location Daily Witness Fee Per diem2 Transportation3 Total Dr. Steven Yaplee Bakersfield, CA4 $40.00 $193.50 $147.40 $380.90 8 J. Gutierrez5 Tehachapi, CA $40.00 $193.50 $210.38 $443.88 Rachel DeLuna Tehachapi, CA $40.00 $193.50 $210.38 $443.88 9 J. Jones Tehachapi, CA $40.00 $193.50 $210.38 $443.88 J. Gutierrez Tehachapi, CA $40.00 $193.50 $210.38 $443.88 10 L. Cardenas Tehachapi, CA $40.00 $193.50 $210.38 $443.88 11 For any witness which Plaintiff wishes to subpoena for trial, he must submit to the Court, no later 12 than December 23, 2024, a money order in the amount indicated above made payable to the 13 witness. The Court will then issue a subpoena to Plaintiff, which Plaintiff is responsible for 14 serving on the witness in compliance with Rule 4 of the Federal Rules of Civil Procedure. 15 Accordingly, it is ORDERED: 16 1. Plaintiff’s Motion for Attendance of Incarcerated Witness (Doc. No. 238) is 17 GRANTED. The undersigned reserves the question of whether Inmate Howard will 18 2 Includes standard daily lodging rate of $129.00 for Fresno, CA plus first/last day Meals and Incidentals 19 of $64.50. Total meals and incidentals for subsequent days is $86.00. U.S. General Services Administration, Per diem rates, https://www.gsa.gov/travel/plan-book/per-diem-rates (last visited 20 November 21, 2024). 3 Travel costs are based on round-trip mileage at the current reimbursement rate. 28 U.S.C. § 1821. As of 21 January 1, 2024, the mileage reimbursement rate for a privately owned vehicle is $0.67 per mile. U.S. 22 General Services Administration, Privately Owned Vehicle (POV) Mileage Reimbursement Rates, https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage- 23 rates (last visited November 21, 2024). 4 The Court takes judicial notice of the fact that Dr. Yaplee’s address in Bakersfield is approximately 110 24 miles from the U.S. District Courthouse in Fresno and California Correctional Institution is approximately 157 miles from the Courthouse. Federal Rule of Evidence 201 permits a court to take judicial notice of 25 facts that are “not subject to reasonable dispute” because they are either “generally known within the trial court's territorial jurisdiction,” or they “can be accurately and readily determined from sources whose 26 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Id.; see also National Agricultural Chemicals Assn. v. Rominger, 500 F.Supp. 465, 472 (E.D. Cal. 1980). The Court may take judicial notice 27 on its own or at the request of any party. Id. 201(c). 5 Plaintiff identifies two witnesses named J. Gutierrez, one a former correctional officer, the other a former 28 associate warden. Both are listed as located at California Correctional Institution. 1 testify at trial in person or via videoconference. 2 2. The Court will issue a writ of habeas corpus ad testificandum to secure the attendance 3 of Inmate Howard. 4 3. No later than December 23, 2024, Plaintiff shall deliver to the Court the appropriate 5 witness fees, identified in this Order, for any nonincarcerated witnesses he intends to 6 call at trial. Plaintiff is advised the Court cannot accept cash, and money orders 7 should not be made payable to the Court but be made payable to the individual 8 witness in that witness’s name. 9 | Dated: _ November 22, 2024 Mihaw. □□□ foareh Yack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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