Council v. Sutton et al (INMATE 1)

Filing 67

ORDER directing that, as stated by the Court in the hearing held at 9:00 a.m. on Friday, June 18, 2010 in the United States Courthouse, One Church Street, Courtroom 2A, Montgomery, Alabama, it is hereby ORDERED that (1) On or before June 25, 2010, th e plaintiff shall, pursuant to the provision of Rule 26(a)(3) of the FRCP, furnish opposing counsel for copying and inspection all exhibits or tangible evidence to be used at the trial, and proffering counsel shall have such evidence marked for ident ification prior to trial, as further set out in order; (2) On or before June 25, 2010, the plaintiff shall file with the court a list of all witnesses expected to be called by them to testify at the trial, and to furnish opposing counsel with a copy of the witness list, as further set out in order; (3) On or before June 25, 2010, the plaintiff shall file written objections to the defendants' exhibits and/or witness list, as further set out in order; (4) On or before July 2, 2010, the defend ants shall file written objections to the plaintiff's exhibits and/or witness list, as further set out in order; and (5) The plaintiff and defendants may, but are not required to, file proposed findings of fact and conclusions of law. Any proposed findings of fact and conclusions of law must be filed on or before July 6, 2010. Signed by Hon. Chief Judge Mark E. Fuller on 6/18/10. (scn, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION T IM O T H Y COUNCIL, #210870, P la in tif f , v. D A V E SUTTON, et al., ) ) ) ) ) ) ) ) ) )

C A S E NO. 1:07-cv-331-MEF (W O )

D e f e n d a n ts.

ORDER A s stated by the Court in the hearing held at 9:00 a.m. on Friday, June 18, 2010 in the United States Courthouse, One Church Street, Courtroom 2A, Montgomery, Alabama, it is h e re b y ORDERED that: 1 ) On or before June 25, 2010, the plaintiff shall, pursuant to the provision of Rule 2 6 (a )(3 ) of the Federal Rules of Civil Procedure, furnish opposing counsel for copying and in s p e c tio n all exhibits or tangible evidence to be used at the trial, and proffering counsel shall h a v e such evidence marked for identification prior to trial. Unless specifically agreed b e tw e e n the parties or allowed by the Court for good cause shown, the parties shall be p re c lu d e d from offering such evidence not so furnished and identified, with the exception o f evidence to be used solely for the purpose of impeachment.

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2) On or before June 25, 2010, the plaintiff shall file with the court a list of all w itn e s s e s expected to be called by them to testify at the trial, and to furnish opposing counsel w ith a copy of the witness list. The witness list should include the names of any witnesses re q u ire d to be disclosed under SECTION 4 of the Uniform Scheduling Order (Doc. #47). Absent a showing of good cause for failure to comply with this requirement, only persons o n the list will be heard as witnesses at trial. P la in tif f is proceeding pro se and in forma pauperis. If plaintiff desires to procure the a tte n d a n c e of witnesses by writ or subpoena, his witness list should contain the addresses of a ll witnesses (whether a subpoena is sought or not, inmate or civilian status) and a brief s ta te m e n t of the expected testimony of each witness, whether a subpoena is sought or not. The plaintiff should be specific in stating the expected testimony of each witness, because if a witness's testimony is not material or simply repetitive of another witness, the court may in its discretion decline to order the subpoena of the witness. See Lloyd v. McKendree, 749 F .2 d 705 (11th Cir. 1985). P la in tif f should be aware that whether the witness is subpoenaed by a pauper or not, R u le 45(c) requires that a subpoena must be accompanied by a per diem fee ($40 per day), a n d a subsistence fee if overnight stay is required, and mileage at $.445 per mile each way, o r it need not be obeyed. The witness will be so informed by the subpoena. It is the re s p o n s ib ility of the subpoenaing party to provide that money to the clerk's office for tender w ith the subpoena. However, even if the plaintiff cannot tender the required fee, witnesses

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still may be subpoenaed and may still attend if they agree to do so without payment of the per d ie m fee and reimbursement of expenses. Each party shall, pursuant to the provisions of R u le 26(a)(3) of the Federal Rules of Civil Procedure, exchange the names, addresses and te le p h o n e numbers of all witnesses, except witnesses solely for impeachment purposes, s e p a ra te ly identifying those whom the party expects to present and those whom the party may c a ll if the need arises. The witness list should include the names of any witnesses required to be disclosed under SECTION 4 of the Uniform Scheduling Order (Doc. #47). Unless s p e c if ic a lly agreed between the parties or allowed by the Court for good cause shown, the p a rtie s shall be precluded from calling any witness not so identified. 3 ) On or before June 25, 2010, the plaintiff shall file written objections to the d e f e n d a n ts ' exhibits and/or witness list. Any evidence not objected to shall be deemed g e n u in e and admissible. The written objections shall set forth the grounds and legal a u th o ritie s. The defendants shall file a written response to the objections not later than seven d a ys prior to trial and shall include a premarked copy of the evidence at issue. 4 ) On or before July 2, 2010, the defendants shall file written objections to the p la in tif f 's exhibits and/or witness list. Any evidence not objected to shall be deemed genuine a n d admissible. The written objections shall set forth the grounds and legal authorities. The p la in tif f shall file a written response to the objections not later than seven days prior to trial a n d shall include a premarked copy of the evidence at issue.

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5) The plaintiff and defendants may, but are not required to, file proposed findings of f a c t and conclusions of law. Any proposed findings of fact and conclusions of law must be f ile d on or before July 6, 2010. D O N E this the 18th day of June, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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