ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF INMATE BRYAN D. RANSOM, #P-13920, AND DIRECTING ATTENDANCE OF INMATE DIEGO R. HERNANDEZ, #V-28618, BY VIDEO CONFERENCE (Docs. 78 AND 90)

ORDER VACATING WRIT OF HABEAS CORPUS AD TESTIFICANDUM DIRECTING PRODUCTION OF INMATE BRYAN D. RANSOM, (Doc. 87)

LAWRENCE J. O'NEILL, District Judge.

This matter is currently set for jury trial before U.S. District Judge Lawrence J. O'Neill on October 1, 2013. Plaintiff's claim against Defendant Albitre arise from events which occurred at California State Prison-Corcoran in 2008.

On June 10, 2013, the Court granted Plaintiff's motion for the attendance of inmate witnesses Bryan D. Ransom, CDCR #P-13920, and Diego R. Hernandez, CDCR #V-28618, and on August 22, 2013, the Court issued writ of habeas corpus ad testificandum directing the production of both inmates for trial on October 1, 2013.

On September 3, 2013, Defendant filed a motion seeking to exclude the testimony of inmate Ransom on the ground that he was not an eye or ear witness to relevant events, and on September 4, 2013, the Court received a letter from inmate Hernandez stating he does not wish to be transported for trial. Based on receipt of the letter, the Court held a telephonic hearing on September 6, 2013, to discuss the matter of both inmate witnesses.

In granting Plaintiff's motion for the attendance of inmate Ransom, the Court believed that inmate Ransom was an eye or ear witness to relevant events which occurred in 2008. Defendant subsequently submitted evidence that inmate Ransom did not arrive at California State Prison-Corcoran until October 2010, and Plaintiff clarified during the hearing that inmate Ransom witnessed events in early 2011.

Events which occurred in 2011 are not relevant to Plaintiff's claim, brought pursuant to the Free Exercise Clause of the First Amendment, that Defendant infringed upon the exercise of Plaintiff's religion by depriving him of prayer oil in September 2008.1 Fed. R. Evid. 401. Therefore, inmate Ransom's testimony is excluded and he shall not be transported for trial.

With respect to inmate Hernandez, although Hernandez does not wish to be transported for trial and he represents that his testimony will be of limited value, Plaintiff maintains that Hernandez previously stated he was willing to testify and he has knowledge of relevant events. In light of these circumstances, the Court declines to preclude Plaintiff from calling a witness he continues to maintain is necessary. However, given that inmate Hernandez is currently located in San Diego and has a parole date of October 16, 2013, he shall appear by videoconference rather than in person, an accommodation the parties found to be acceptable.2 Fed. R. Civ. P. 43(a).

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

1. Defendant's motion to exclude the testimony of inmate Bryan D. Ransom is GRANTED;

2. The writ of habeas corpus ad testificandum directing the production of inmate Bryan D. Ransom, CDCR #P-13920, is VACATED;

3. Inmate Diego R. Hernandez, CDCR #V-28618, shall appear for trial by videoconference; and

4. The Clerk's Office shall serve a copy of this order on (1) the Litigation Offices of California State Prison-Corcoran and Richard J. Donovan Correctional Facility, (2) inmate Bryan D. Ransom, #P-13920, at California State Prison-Corcoran, and (3) inmate Diego R. Hernandez, #V-28618, at Richard J. Donovan Correctional Facility.

IT IS SO ORDERED.