Jordan v. Chapnick et al

Filing 90

SECOND SCHEDULING ORDER; ORDER Directing Clerk's Office to Send Local Rule 281 to Plaintiff, signed by Magistrate Judge Michael J. Seng on 8/3/11. Pretrial Conference set for 12/16/2011 at 09:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng; Jury Trial set for 1/26/2012 at 08:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Attachments: # 1 Local Rule 281)(Verduzco, M)

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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)
SECOND SCHEDULING ORDER

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Plaintiff,

ORDER DIRECTING CLERK’S OFFICE TO
SEND LOCAL RULE 281 TO PLAINTIFF

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v.
Pretrial
Conference: December 16, 2011, at 9:30
a.m. in Courtroom 6 (MJS)

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R. CHAPNICK, et al.
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Jury Trial:
Defendants.

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January 26, 2012, at 8:30 a.m.
in Courtroom 6 (MJS)

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Plaintiff James Jordan (“Plaintiff”) is a former state prisoner proceeding pro se and
in forma pauperis in this civil rights action seeking relief pursuant to 42 U.S.C. 1983.

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Plaintiff initiated the action on February 7, 2007. (Compl., ECF No. 7.) It is

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proceeding against Defendant Chapnick on Plaintiff’s Eighth Amendment claim for

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inadequate medical care at Pleasant Valley State Prison in 2005. (Id.) The matter was

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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On February 15, 2011, the Magistrate Judge filed a Findings and Recommendation

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recommending that Defendant’s Motion for Summary Judgment be granted in part and

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denied in part. (ECF No. 83.) The District Judge adopted the Magistrate Judge’s Findings

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and Recommendations on March 23, 2011. (ECF No. 84.) Accordingly, pursuant to Rule

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16(b) of the Federal Rules of Civil Procedure and the fact that both parties have now
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consented to Magistrate Judge jurisdiction for all purposes, the Court here sets a further

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schedule for this litigation.

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The parties are required to file pretrial statements in accordance with the schedule

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set forth herein. In addition to the matters already required to be addressed in the pretrial

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statement in accordance with Local Rule 281, Plaintiff will be required to make a

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particularized showing in order to obtain the attendance of witnesses. The procedures and

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requirements for making such a showing are outlined in detail below. Plaintiff is advised

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that failure to comply with the procedures set forth below may result in the preclusion of

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any and all witnesses named in his pretrial statement.

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At the trial of this case, Plaintiff must be prepared to introduce evidence to prove

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each of the alleged facts that support the claims raised in the lawsuit. In general, there are

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two kinds of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s

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responsibility to produce all of the evidence to prove his case, whether that evidence is in

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the form of exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, he

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must follow certain procedures to ensure that the witnesses will be at the trial and available

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to testify.

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1.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree

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to Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to

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give testimony cannot come to court unless the Court orders the warden or other custodian

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to permit the witness to be transported to court. The Court will not issue such an order

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unless it is satisfied that: (a) the prospective witness is willing to attend; and (b) the

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prospective witness has actual knowledge of relevant facts.

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A party intending to introduce the testimony of incarcerated witnesses who have

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agreed voluntarily to attend the trial must serve and file concurrent with the pretrial

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statement a written motion for a court order requiring that such witnesses be brought to

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court at the time of trial. The motion must: (1) state the name, address, and prison

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identification number of each such witness; and (2) be accompanied by declarations

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showing that each witness is willing to testify and that each witness has actual knowledge
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of relevant facts. The motion should be entitled “Motion for Attendance of Incarcerated

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Witnesses.”

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The willingness of the prospective witness can be shown in one of two ways: (1) the

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party himself can swear by declaration under penalty of perjury that the prospective witness

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has informed the party that he or she is willing to testify voluntarily without being

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subpoenaed; in that declaration the party must state when and where the prospective

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witness informed the party of this willingness; or (2) the party can serve and file a

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declaration, signed under penalty of perjury by the prospective witness, in which the

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witness states that he or she is willing to testify without being subpoenaed.

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The prospective witness’s actual knowledge of relevant facts can be shown in one

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of two ways: (1) if the party has actual firsthand knowledge that the prospective witness

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was an eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in

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Plaintiff’s cell and, at the time, Plaintiff saw that a cell mate was present and observed the

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incident, Plaintiff may swear to the cell mate’s ability to testify), the party himself can swear

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by declaration under penalty of perjury that the prospective witness has actual knowledge;

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or (2) the party can serve and file a declaration signed under penalty of perjury by the

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prospective witness in which the witness describes the relevant facts to which the

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prospective witness was an eye- or ear-witness. Whether the declaration is made by the

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party or by the prospective witness, it must be specific about the incident, when and where

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it occurred, who was present, and how the prospective witness happened to be in a

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position to see or to hear what occurred at the time it occurred.

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The Court will review and rule on the motion for attendance of incarcerated

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witnesses, specifying which prospective witnesses must be brought to court.

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Subsequently, the Court will issue the order necessary to cause the witness’s custodian

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to bring the witness to court.

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Motions for the attendance of incarcerated witnesses, if any, must be filed on

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or before November 1, 2011.

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Oppositions, if any, must be filed on or before

December 1, 2011.
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2.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse

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to Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses

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who refuse to testify voluntarily, the party should submit with his pretrial statement a motion

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for the attendance of such witnesses. Such motion should be in the form described above.

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In addition, the party must indicate in the motion that the incarcerated witnesses are not

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willing to testify voluntarily.

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3.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who

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Agree to Testify Voluntarily - It is the responsibility of the party who has secured an

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unincarcerated witness’s voluntary attendance to notify the witness of the time and date

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of trial. No action need be sought or obtained from the Court.
4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who

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Refuse to Testify Voluntarily - If a prospective witness is not incarcerated, and he or she

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refuses to testify voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P.

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45. In addition, the party seeking the witness’s presence must tender an appropriate sum

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of money for the witness. Id. In the case of an unincarcerated witness, the appropriate

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sum of money is the daily witness fee of $40.00 plus the witness’s travel expenses. 28

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U.S.C. § 1821.

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If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses

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who refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name

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and location of each unincarcerated witness. The Court will calculate the travel expense

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for each unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then,

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for each witness, submit a money order made payable to the witness for the full amount

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of the witness’s travel expenses plus the daily witness fee of $40.00. The subpoena will

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not be served upon the unincarcerated witness by the United States Marshal unless the

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money order is tendered to the Court. Because no statute authorizes the use of public

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funds for these expenses in civil cases, the tendering of witness fees and travel expenses

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is required even if the party was granted leave to proceed in forma pauperis.

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If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses
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who refuse to testify voluntarily, Plaintiff must submit the money orders to the Court

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no later than December 1, 2011. In order to ensure timely submission of the money

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orders, Plaintiff should notify the Court of the names and locations of his witnesses, in

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compliance with step one, as soon as possible.

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The parties are advised that failure to file pretrial statements as required by this

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Order may result in the imposition of appropriate sanctions, which may include dismissal

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of the action or entry of default.
Accordingly, the Court HEREBY ORDERS as follows:

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1.

Michael J. Seng on December 16, 2011, at 9:30 a.m., in Courtroom 6;

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2.

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Defendant shall serve and file a pretrial statement as described in this Oder
on or before December 1, 2011;

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Plaintiff shall serve and file a pretrial statement as described in this Order on
or before November 1, 2011;

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This matter is set for jury trial before the Honorable Michael J. Seng on
January 26, 2012, at 8:30 a.m. in Courtroom 6;

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The parties should notify the Court by December 1, 2011, if they wish to
telephonically participate in the pretrial conference;

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This matter is set for pretrial conference hearing before the Honorable

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If Plaintiff intends to call incarcerated witnesses at the time of trial, Plaintiff

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shall serve and file a motion for attendance of incarcerated witnesses as

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described in this Order on or before November 1, 2011;

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if any, shall be filed on or before December 1, 2011;

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The opposition to the motion for the attendance of incarcerated witnesses,

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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must submit the money orders, as

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described in subsection 4 of this order, to the Court on or before December

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1, 2011; and

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The Clerk’s Office shall send Plaintiff a copy of Local Rule 281.

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IT IS SO ORDERED.

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Dated:
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August 3, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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