Jordan v. Chapnick et al

Filing 110

ORDER DENYING, Without Prejudice, 99 Plaintiff's Motion to "Request Early Pre-Witness List Calculations" signed by Magistrate Judge Michael J. Seng on 1/12/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES JORDAN,

CASE NO. 1:07-cv-0202-MJS (PC)
ORDER DENYING, WITHOUT
PREJUDICE, PLAINTIFF’S MOTION “TO
REQUEST EARLY PRE-WITNESS LIST
CALCULATIONS”

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Plaintiff,
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v.
(ECF Nos. 99 & 107)

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R. CHAPNICK, et al.
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Defendants.

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Plaintiff James Jordan (“Plaintiff”) is a former state prisoner proceeding pro se and

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in forma pauperis. Plaintiff has filed this civil rights action seeking relief pursuant to 42

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U.S.C. § 1983.

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Trial of this case is scheduled to begin March 29, 2012. In response to the

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directives of the Court’s Amended Second Scheduling Order (ECF No. 95), Plaintiff on

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December 12, 2012, filed a motion requesting “early pre-witness list calculations”. (ECF

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No. 99.) In said motion, Plaintiff identified some nineteen unincarcerated individuals and

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one prison inmate, Roger “William” Brown, as witnesses Plaintiff seeks to have made

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available to testify at trial.

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On December 28, 2011, Defendant filed an opposition to issuance of an order

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directing that inmate Brown be made available to testify at the trial because, Defendant

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contended, Plaintiff failed to make the particularized showing necessary to secure

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attendance of an incarcerated witness. (ECF No. 107.)

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Defendant is correct. Plaintiff has failed to comply with the requirements of sections
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1 or 2 of the Court’s Amended Second Scheduling Order and failed to provide the

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information required therein to enable the Court to determine whether production of an

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incarcerated witness is warranted.

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Accordingly, Plaintiff’s request that Mr. Brown be produced as a witness at trial is

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DENIED. However, inasmuch as Plaintiff timely filed his request and it was not ruled upon

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until after expiration of the Second Amended Scheduling Order’s deadline for identification

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of incarcerated witnesses, the denial is without prejudice to Plaintiff filing a proper request

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for production of the incarcerated witness (with all information required by the Second

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Amended Scheduling Order) PROVIDED that the renewed request is filed on or before

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January 27, 2012. Failure to file a proper request by that date will result in the Court’s

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refusal to consider the request.

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Plaintiff’s said motion also asks, in accordance with the Amended Second

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Scheduling Order, to have the Court calculate the travel expense allowed for each of the

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nineteen unincarcerated witnesses to travel to trial. Plaintiff’s motion reflects his intent to

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seek trial subpoenas compelling the attendance of each of these said nineteen individuals.

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This portion of the motion also is DENIED without prejudice. The Court is unable

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to fathom any circumstance in which all nineteen of these witnesses could have necessary,

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relevant and admissible evidence to offer at trial. It will not calculate travel expense or

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issue subpoenas to any such witness unless and until Plaintiff makes a showing that each

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can and will provide necessary, relevant and admissible testimony at trial. If Plaintiff

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wishes to proceed with his requests regarding these witnesses, he shall file with the Court

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not later than January 24, 2012, his declaration under penalty of perjury setting forth, as

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to each witness: 1) a brief statement as to what testimony Plaintiff believes the witness will

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offer in support of Plaintiff’s case; 2) whether Plaintiff has discussed with the witness his

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intent to call the witness to testify; 3) whether the witness has communicated to Plaintiff a

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willingness to testify in Plaintiff’s behalf; and, 4) whether the witness has communicated

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an ability to testify in support of Plaintiff’s case in the manner set forth in 1) above.

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Defendant is invited to submit, not later than January 24, 2012, its own declaration(s)
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addressing each of these four points as to each witness. On receipt of said declaration(s),

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the Court will determine which, if any, of the witnesses will be allowed to testify and will

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calculate and advise Plaintiff of the travel expense for each.

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IT IS SO ORDERED.

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Dated:
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January 12, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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