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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES JORDAN, CASE NO. 1:07-cv-0202-MJS (PC) SECOND SCHEDULING ORDER 10 Plaintiff, ORDER DIRECTING CLERK’S OFFICE TO SEND LOCAL RULE 281 TO PLAINTIFF 11 12 v. Pretrial Conference: December 16, 2011, at 9:30 a.m. in Courtroom 6 (MJS) 13 R. CHAPNICK, et al. 14 Jury Trial: Defendants. 15 January 26, 2012, at 8:30 a.m. in Courtroom 6 (MJS) / 16 17 18 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. 19 Plaintiff initiated the action on February 7, 2007. (Compl., ECF No. 7.) It is 20 proceeding against Defendant Chapnick on Plaintiff’s Eighth Amendment claim for 21 inadequate medical care at Pleasant Valley State Prison in 2005. (Id.) The matter was 22 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 23 Local Rule 302. 24 On February 15, 2011, the Magistrate Judge filed a Findings and Recommendation 25 recommending that Defendant’s Motion for Summary Judgment be granted in part and 26 denied in part. (ECF No. 83.) The District Judge adopted the Magistrate Judge’s Findings 27 and Recommendations on March 23, 2011. (ECF No. 84.) Accordingly, pursuant to Rule 28 16(b) of the Federal Rules of Civil Procedure and the fact that both parties have now -1- 1 consented to Magistrate Judge jurisdiction for all purposes, the Court here sets a further 2 schedule for this litigation. 3 The parties are required to file pretrial statements in accordance with the schedule 4 set forth herein. In addition to the matters already required to be addressed in the pretrial 5 statement in accordance with Local Rule 281, Plaintiff will be required to make a 6 particularized showing in order to obtain the attendance of witnesses. The procedures and 7 requirements for making such a showing are outlined in detail below. Plaintiff is advised 8 that failure to comply with the procedures set forth below may result in the preclusion of 9 any and all witnesses named in his pretrial statement. 10 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove 11 each of the alleged facts that support the claims raised in the lawsuit. In general, there are 12 two kinds of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s 13 responsibility to produce all of the evidence to prove his case, whether that evidence is in 14 the form of exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, he 15 must follow certain procedures to ensure that the witnesses will be at the trial and available 16 to testify. 17 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree 18 to Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to 19 give testimony cannot come to court unless the Court orders the warden or other custodian 20 to permit the witness to be transported to court. The Court will not issue such an order 21 unless it is satisfied that: (a) the prospective witness is willing to attend; and (b) the 22 prospective witness has actual knowledge of relevant facts. 23 A party intending to introduce the testimony of incarcerated witnesses who have 24 agreed voluntarily to attend the trial must serve and file concurrent with the pretrial 25 statement a written motion for a court order requiring that such witnesses be brought to 26 court at the time of trial. The motion must: (1) state the name, address, and prison 27 identification number of each such witness; and (2) be accompanied by declarations 28 showing that each witness is willing to testify and that each witness has actual knowledge -2- 1 of relevant facts. The motion should be entitled “Motion for Attendance of Incarcerated 2 Witnesses.” 3 The willingness of the prospective witness can be shown in one of two ways: (1) the 4 party himself can swear by declaration under penalty of perjury that the prospective witness 5 has informed the party that he or she is willing to testify voluntarily without being 6 subpoenaed; in that declaration the party must state when and where the prospective 7 witness informed the party of this willingness; or (2) the party can serve and file a 8 declaration, signed under penalty of perjury by the prospective witness, in which the 9 witness states that he or she is willing to testify without being subpoenaed. 10 The prospective witness’s actual knowledge of relevant facts can be shown in one 11 of two ways: (1) if the party has actual firsthand knowledge that the prospective witness 12 was an eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in 13 Plaintiff’s cell and, at the time, Plaintiff saw that a cell mate was present and observed the 14 incident, Plaintiff may swear to the cell mate’s ability to testify), the party himself can swear 15 by declaration under penalty of perjury that the prospective witness has actual knowledge; 16 or (2) the party can serve and file a declaration signed under penalty of perjury by the 17 prospective witness in which the witness describes the relevant facts to which the 18 prospective witness was an eye- or ear-witness. Whether the declaration is made by the 19 party or by the prospective witness, it must be specific about the incident, when and where 20 it occurred, who was present, and how the prospective witness happened to be in a 21 position to see or to hear what occurred at the time it occurred. 22 The Court will review and rule on the motion for attendance of incarcerated 23 witnesses, specifying which prospective witnesses must be brought to court. 24 Subsequently, the Court will issue the order necessary to cause the witness’s custodian 25 to bring the witness to court. 26 Motions for the attendance of incarcerated witnesses, if any, must be filed on 27 or before November 1, 2011. 28 Oppositions, if any, must be filed on or before December 1, 2011. -3- 1 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse 2 to Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses 3 who refuse to testify voluntarily, the party should submit with his pretrial statement a motion 4 for the attendance of such witnesses. Such motion should be in the form described above. 5 In addition, the party must indicate in the motion that the incarcerated witnesses are not 6 willing to testify voluntarily. 7 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who 8 Agree to Testify Voluntarily - It is the responsibility of the party who has secured an 9 unincarcerated witness’s voluntary attendance to notify the witness of the time and date 10 11 of trial. No action need be sought or obtained from the Court. 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who 12 Refuse to Testify Voluntarily - If a prospective witness is not incarcerated, and he or she 13 refuses to testify voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 14 45. In addition, the party seeking the witness’s presence must tender an appropriate sum 15 of money for the witness. Id. In the case of an unincarcerated witness, the appropriate 16 sum of money is the daily witness fee of $40.00 plus the witness’s travel expenses. 28 17 U.S.C. § 1821. 18 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses 19 who refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name 20 and location of each unincarcerated witness. The Court will calculate the travel expense 21 for each unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, 22 for each witness, submit a money order made payable to the witness for the full amount 23 of the witness’s travel expenses plus the daily witness fee of $40.00. The subpoena will 24 not be served upon the unincarcerated witness by the United States Marshal unless the 25 money order is tendered to the Court. Because no statute authorizes the use of public 26 funds for these expenses in civil cases, the tendering of witness fees and travel expenses 27 is required even if the party was granted leave to proceed in forma pauperis. 28 If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses -4- 1 who refuse to testify voluntarily, Plaintiff must submit the money orders to the Court 2 no later than December 1, 2011. In order to ensure timely submission of the money 3 orders, Plaintiff should notify the Court of the names and locations of his witnesses, in 4 compliance with step one, as soon as possible. 5 The parties are advised that failure to file pretrial statements as required by this 6 Order may result in the imposition of appropriate sanctions, which may include dismissal 7 of the action or entry of default. Accordingly, the Court HEREBY ORDERS as follows: 8 9 1. Michael J. Seng on December 16, 2011, at 9:30 a.m., in Courtroom 6; 10 11 2. 3. 4. 5. Defendant shall serve and file a pretrial statement as described in this Oder on or before December 1, 2011; 18 19 Plaintiff shall serve and file a pretrial statement as described in this Order on or before November 1, 2011; 16 17 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; 14 15 The parties should notify the Court by December 1, 2011, if they wish to telephonically participate in the pretrial conference; 12 13 This matter is set for pretrial conference hearing before the Honorable 6. If Plaintiff intends to call incarcerated witnesses at the time of trial, Plaintiff 20 shall serve and file a motion for attendance of incarcerated witnesses as 21 described in this Order on or before November 1, 2011; 22 7. if any, shall be filed on or before December 1, 2011; 23 24 The opposition to the motion for the attendance of incarcerated witnesses, 8. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who 25 refuse to testify voluntarily, Plaintiff must submit the money orders, as 26 described in subsection 4 of this order, to the Court on or before December 27 28 -5- 1, 2011; and 1 9. 2 The Clerk’s Office shall send Plaintiff a copy of Local Rule 281. 3 4 5 6 IT IS SO ORDERED. 7 Dated: ci4d6 August 3, 2011 Michael J. Seng /s/ 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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