Tilei v. Wan et al

Filing 135

AMENDED Second Scheduling Order; ORDER REQUIRING Plaintiff to Notify Court Whether He Consents to Magistrate Judge Jurisdiction Within Thirty Days; ORDER DIRECTING Clerk's Office to Send Consent Form to Plaintiff, signed by Magistrate Judge Gary S. Austin on 1/31/12: Telephonic Pretrial Conference set for 3/26/2012 at 03:00 PM in Courtroom 2 before Chief Judge Anthony W. Ishii; Jury Trial set for 5/8/2012 at 08:30 AM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii.(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PUNAOFO TSUGITO TILEI, 12 1:06-cv-00776-AWI-GSA-PC Plaintiff, 13 v. 14 AMENDED SECOND SCHEDULING ORDER T. WAN, et al., 15 ORDER REQUIRING PLAINTIFF TO NOTIFY COURT WHETHER HE CONSENTS TO MAGISTRATE JUDGE JURISDICTION WITHIN THIRTY DAYS Defendants. ORDER DIRECTING CLERK’S OFFICE TO SEND CONSENT FORM TO PLAINTIFF 16 17 18 Telephonic Pretrial Conference: March 26, 2012, at 3:00 p.m. in Courtroom 2 (AWI) 19 Jury Trial: May 8, 2012, at 8:30 a.m. in Courtroom 2 (AWI) 20 / 21 22 Punaofo Tsugito Tilei (“Plaintiff”) is a state prisoner proceeding in forma pauperis and with 23 appointed counsel in this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds 24 on Plaintiff’s First Amended Complaint filed on July 30, 2007, against defendants Captain T. Wan, 25 Lieutenant J. Gallagher, and Correctional Counselor C. L. Cooper (“Defendants”) for retaliation and 26 violation of due process.1 (Doc. 16.) Defendants have consented to the jurisdiction of a Magistrate 27 1 28 On July 8, 2008, the Court dismissed Plaintiff’s non-cognizable state law claims from this action, with prejudice, for failure to state a claim. (Doc. 26.) The Court also dismissed Plaintiff’s claims for declaratory and injunctive relief. Id. 1 1 Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 118.) To date, Plaintiff has not returned the form 2 for consent to or decline of Magistrate Judge jurisdiction. Pursuant to Rule 16(b) of the Federal 3 Rules of Civil Procedure, the Court will, by this order, set a further schedule for this litigation. 4 The parties are required to file pretrial statements in accordance with the schedule set forth 5 herein. In addition to the matters already required to be addressed in the pretrial statement in 6 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in order 7 to obtain the attendance of witnesses. The procedures and requirements for making such a showing 8 are outlined in detail below. Plaintiff is advised that failure to comply with the procedures set 9 forth below may result in the preclusion of any and all witnesses named in his pretrial 10 statement. 11 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of the 12 alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of trial 13 evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to produce 14 all of the evidence to prove his case, whether that evidence is in the form of exhibits or witness 15 testimony. If Plaintiff wants to call witnesses to testify, he must follow certain procedures to ensure 16 that the witnesses will be at the trial and available to testify. 17 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify 18 Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot 19 come to court unless this Court orders the warden or other custodian to permit the witness to be 20 transported to court. This Court will not issue such an order unless it is satisfied that: (a) the 21 prospective witness is willing to attend; and (b) the prospective witness has actual knowledge of 22 relevant facts. 23 A party intending to introduce the testimony of incarcerated witnesses who have agreed 24 voluntarily to attend the trial must serve and file concurrent with the pretrial statement a written 25 motion for a court order requiring that such witnesses be brought to court at the time of trial. The 26 motion must: (1) state the name, address, and prison identification number of each such witness; and 27 (2) be accompanied by declarations showing that each witness is willing to testify and that each 28 witness has actual knowledge of relevant facts. The motion should be entitled “Motion for 2 1 Attendance of Incarcerated Witnesses.” 2 The willingness of the prospective witness can be shown in one of two ways: (1) the party 3 himself can swear by declaration under penalty of perjury that the prospective witness has informed 4 the party that he or she is willing to testify voluntarily without being subpoenaed, in which 5 declaration the party must state when and where the prospective witness informed the party of this 6 willingness; or (2) the party can serve and file a declaration, signed under penalty of perjury by the 7 prospective witness, in which the witness states that he or she is willing to testify without being 8 subpoenaed. 9 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 10 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an eyewitness 11 or an ear-witness to the relevant facts (i.e., if an incident occurred in Plaintiff’s cell and, at the time, 12 Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may swear to the 13 cellmate’s ability to testify), the party himself can swear by declaration under penalty of perjury that 14 the prospective witness has actual knowledge; or (2) the party can serve and file a declaration signed 15 under penalty of perjury by the prospective witness in which the witness describes the relevant facts 16 to which the prospective witness was an eye- or ear-witness. Whether the declaration is made by the 17 party or by the prospective witness, it must be specific about the incident, when and where it 18 occurred, who was present, and how the prospective witness happened to be in a position to see or 19 to hear what occurred at the time it occurred. 20 The Court will review and rule on the motion for attendance of incarcerated witnesses, 21 specifying which prospective witnesses must be brought to court. Subsequently, the Court will issue 22 the order necessary to cause the witness’s custodian to bring the witness to court. 23 24 25 Motions for the attendance of incarcerated witnesses, if any, must be filed on or before March 1, 2012. Oppositions, if any, must be filed on or before March 19, 2012. 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 26 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who refuse 27 to testify voluntarily, the party should submit with his pretrial statement a motion for the attendance 28 of such witnesses. Such motion should be in the form described above. In addition, the party must 3 1 indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily. 2 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 3 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 4 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need be 5 sought or obtained from the court. 6 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 7 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 8 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the party 9 seeking the witness’s presence must tender an appropriate sum of money for the witness. Id. In the 10 case of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 11 plus the witness’s travel expenses. 28 U.S.C. § 1821. 12 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 13 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and location 14 of each unincarcerated witness. The Court will calculate the travel expense for each unincarcerated 15 witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, submit a money 16 order made payable to the witness for the full amount of the witness’s travel expenses plus the daily 17 witness fee of $40.00. The subpoena will not be served upon the unincarcerated witness by the 18 United States Marshal unless the money order is tendered to the Court. Because no statute 19 authorizes the use of public funds for these expenses in civil cases, the tendering of witness fees and 20 travel expenses is required even if the party was granted leave to proceed in forma pauperis. 21 If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse 22 to testify voluntarily, Plaintiff must submit the money orders to the Court no later than March 23 19, 2012. In order to ensure timely submission of the money orders, Plaintiff should notify the Court 24 of the names and locations of his witnesses, in compliance with step one, as soon as possible. 25 The parties are advised that failure to file pretrial statements as required by this order may 26 result in the imposition of appropriate sanctions, which may include dismissal of the action or entry 27 of default. 28 /// 4 1 Finally, the Court shall direct the Clerk’s Office to provide Plaintiff with a consent/decline 2 form. Within thirty days from the date of service of this order, Plaintiff shall inform the Court 3 whether he consents to or declines Magistrate Judge jurisdiction by filling out the form and returning 4 it to the Court. 5 Accordingly, the Court HEREBY ORDERS as follows: 6 1. 7 8 W. Ishii on March 26, 2012, at 3:00 p.m. in Courtroom 2; 2. 9 10 This matter is set for telephonic pretrial conference before the Honorable Anthony This matter is set for jury trial before the Honorable Anthony W. Ishii on May 8, 2012, at 8:30 a.m. in Courtroom 2; 3. Counsel for Defendants is required to coordinate with counsel for Plaintiff to 11 participate in the telephonic pretrial conference, and to initiate the telephonic 12 conference at (559) 499-5650 after all counsel are on the line; 13 4. 14 15 before March 1, 2012; 5. 16 17 Plaintiff shall serve and file a pretrial statement as described in this order on or Defendants shall serve and file a pretrial statement as described in this order on or before March 19, 2012; 6. In addition to electronically filing their pretrial statements, the parties shall send a 18 courtesy paper copy to Harold Nazaroff, courtroom deputy for the Honorable 19 Anthony W. Ishii, within one business day following the electronic filing; 20 7. If Plaintiff intends to call incarcerated witnesses at time of trial, Plaintiff shall serve 21 and file a motion for attendance of incarcerated witnesses as described in this order 22 on or before March 1, 2012; 23 8. 24 25 The opposition to the motion for the attendance of incarcerated witnesses, if any, shall be filed on or before March 19, 2012; 9. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse 26 to testify voluntarily, Plaintiff must submit the money orders, as described in 27 subsection 4 of this order, to the Court on or before March 19, 2012; 28 10. The Clerk’s Office shall send Plaintiff a consent/decline form; 5 1 11. Within thirty (30) days from the date of service of this order, Plaintiff shall notify 2 the Court whether he consents to or declines Magistrate Judge jurisdiction by filling 3 out the enclosed form and returning it to the Court; and 4 12. The Clerk’s Office shall send Plaintiff a copy of Local Rule 281. 5 6 7 IT IS SO ORDERED. Dated: 6i0kij January 31, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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