1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANUEL DORADOR-MARTINEZ, Case No.: 18-CV-534-CAB-BGS

12 Plaintiff,

ORDER ON RENEWED MOTION

13 v. FOR SUMMARY JUDGMENT AND

SCHEDULING ORDER

14 CORECIVIC INC.; DO CARINI,

15 Defendants. [Doc. No. 83] 16 17 18 The Court previously denied the defendants’ motion for summary judgment in this 19 case finding material facts in dispute. Essentially, plaintiff Manuel Dorador-Martinez 20 alleges that defendant Detention Officer Carini assaulted him while the plaintiff was in the 21 custody of defendant CoreCivic, Inc. In response to the plaintiff’s sworn statements that 22 Officer Carini caused his alleged injuries, defendants produced evidence that Officer Carini 23 was not working on the day the assault allegedly occurred, or the days immediately 24 preceding the alleged date. Plaintiff contends that these records may be inaccurate, or he 25 may have confused the exact date of the incident, but he is unequivocal that Officer Carini 26 is the individual who assaulted him. The Court found this dispute precluded summary 27 judgment in favor of the defendants and set the matter for trial. 28 Subsequently, plaintiff’s counsel notified the Court that Mr. Dorador having been 1 deported following a felony conviction in this judicial district, was denied a parole request 2 made under 8 U.S.C § 1182(d)(5) to be allowed to return to the United States to testify at 3 trial. Such denials are not appealable, and the plaintiff has provided no authority that the 4 Court may overrule the discretionary exercise of U.S. Customs and Border Protection 5 authority in this regard. The Court therefore directed defendants to renew the motion for 6 summary judgment and required plaintiff to present what evidence plaintiff could offer, 7 absent his own testimony, that would both identify the defendant as the alleged assailant 8 and could competently be offered to contradict defendants’ evidence that Officer Carini 9 was not on duty on the date of or near the alleged incident. Accordingly, defendants 10 renewed their motion for summary judgment. [Doc. No. 83.] Plaintiff opposed [Doc. No. 11 85] and defendants replied. [Doc. No. 90.] 12 Having considered the submissions of the parties, the Court finds that plaintiff has 13 proffered no admissible evidence that would contradict the defendants’ records regarding 14 Officer Carini’s work schedule on and around the dates of the alleged assault. Further, 15 without the testimony of Mr. Dorador, there is no evidence that identifies Officer Carini as 16 the alleged assailant. Consequently, unless Mr. Dorador testifies at trial, he cannot sustain 17 his burden of proof to establish that Officer Carini assaulted him and caused his alleged 18 injuries on or about the time at issue. 19 This however does not end the matter, as plaintiff requested in his opposition that he 20 be permitted to testify pursuant to Federal Rule of Civil Procedure 43(a), allowing the 21 Court to permit testimony by contemporaneous transmission from a different location for 22 good cause in compelling circumstances. When a party’s testimony is essential to his 23 complaint, but he is unable to appear in court, a trial court “must investigate reasonable 24 alternatives” before dismissing the action. See Hernandez v. Whiting, 881 F.2d 768, 771 25 (9th Cir. 1989) (it is necessary for the court to consider methods of bringing [the party] 26 before the court, particularly when [the party’s] testimony is essential to his complaint). 27 Plaintiff’s request to testify by video transmission, pursuant to Rule 43, is granted 28 and the renewed motion for summary judgment is DENIED. Plaintiff will make the 1 ||necessary arrangements and pay the expenses for remote testimony. Defendants may 2 ||submit a supplemental motion in limine no later than September 11, 2019, regarding any 3 || conditions or safeguards they propose as appropriate for the remote testimony. 4 The hearing scheduled for September 10, 2019 is hereby VACATED. The parties 5 || will file oppositions to the pending motions in limine (and defendant’s supplemental 6 motion if filed) no later than September 18, 2019. Motions in limine will be heard on 7 September 26, 2019 at 3:00 p.m. Trial is rescheduled for October 28, 2019, at 8:45 a.m. 8 || through October 31, 2019. 9 It is SO ORDERED. 10 || Dated: September 4, 2019 € 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28