Hendon v. Baroya et al

Filing 190

ORDER Denying 150 Plaintiff's Motion for the Attendance of Incarcerated Witness and Further Clarification, signed by Magistrate Judge Stanley A. Boone on 10/1/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS HENDON,,

Case No. 1:05-cv-01247-SAB-PC

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ORDER DENYING PLAINTIFF’S MOTION
FOR THE ATTENDANCE OF
INCARCERATED WITNESS AND
FURTHER CLARIFICATOIN

Plaintiff,
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v.
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I. BAROYA, et al.,

(ECF NO. 150)

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Defendants.
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At the September 21, 2015, pretrial confirmation hearing, the Court indicated that it
would consider Plaintiff’s March 9, 2105, motion for the attendance of incarcerated witness.
Defendant Fam has opposed the motion.
In the February 17, 2015, scheduling order (ECF No. 148), Plaintiff was advised that in
order to obtain the attendance of an incarcerated witness, he must show, by declaration, that the
prospective witness has actual knowledge of relevant facts.

Plaintiff was advised that the

prospective witness’s actual knowledge could be shown in one of two ways: (1) if the party has
actual knowledge that the prospective witness was an eyewitness or an ear witness to the relevant
facts, the party himself can swear by declaration under penalty of perjury that the prospective
witness has actual knowledge; or (2) the party can serve and file a declaration signed under
penalty of perjury by the prospective witness in which the witness was an eye or ear witness.
Whether the declaration is made by the party or by the prospective witness, it must be specific
about the incident, when and where it occurred, who was present, and how the prospective
witness happened to be in a position to see or to hear what occurred at the time it occurred.
Plaintiff seeks the attendance of inmate witness Billy Fells. Plaintiff supports his motion
with the declaration of inmate Fells. Inmate Fells declares that he was housed at CCI (where the

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1 events at issue in this lawsuit occurred) from January 1996 through January 1998. He was on
2 suicide precaution at CCI “on several occasions” and was subjected to cold cell temperatures,
3 constant lighting, and lack of showers.
The events at issue in this lawsuit occurred from June 2002 to January 2003. Inmate

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5 Fells indicates that he only has knowledge of his own experience. Defendant Fam correctly
6 argues that because Plaintiff’s remaining claim is against individual defendants rather than
7 against a public entity, Fells’ experience is irrelevant to this action and he should not be
8 permitted to testify. Because Plaintiff has not shown that Inmate Fells was an eye or ear witness
9 to the events at issue in this lawsuit, he is not permitted to testify.
In the Court’s trial scheduling order of April 20, 2015 (ECF No. 169), the Court set a

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11 deadline of September 15, 2015, to exchange exhibits. In the September 22, 2015, pretrial order
12 (ECF No. 175), the date was extended to September 29, 2015. Defendants indicate that the
13 parties exchanged exhibits on September 15, 2015. The date for filing and serving a final exhibit
14 list and pre-marked exhibits is October 6, 2015.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for the attendance of incarcerated witness Billy Fells is denied;
and

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2.

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The deadline for filing and serving a final exhibit list and pre-marked exhibits is
October 6, 2015.

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IT IS SO ORDERED.

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October 1, 2015
UNITED STATES MAGISTRATE JUDGE

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