Rackliffe v. Rocha et al

Filing 140

ORDER PARTIALLY GRANTING PLAINTIFFS MOTIONS FOR WITNESSES signed by Magistrate Judge Michael J. Seng on 4/12/2013 re 94 , 95 , 96 , 97 , 109 , 131 , 132 , 139 .(Lundstrom, T)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
BRANDON RACKLIFFE,

CASE NO. 1:07-cv-00603-MJS PC

10
11

ORDER PARTIALLY GRANTING
PLAINTIFF’S MOTIONS FOR WITNESSES

Plaintiff,
v.

12

(ECF Nos. 94, 95, 96, 97, 109, 131, 132, 139)

13 ROCHA, et al.,
14

Defendants.

15

/

16
Plaintiff Brandon Rackliffe, a California state prisoner proceeding pro se, filed this
17
civil rights action pursuant to 42 U.S.C. § 1983 on April 20, 2007.
18
This action proceeds on Plaintiff’s amended complaint, filed February 25, 2008,
19
against Defendants Rocha and Medina for use of excessive physical force against Plaintiff
20
in violation of the Eighth Amendment of the United States Constitution. Plaintiff’s claim
21
arises from an incident which occurred on July 26, 2006, at Kern Valley State Prison in
22
Delano, California.
23
Plaintiff has filed various motions regarding witnesses. In his pretrial statement he
24
informed the Court he wanted to subpoena some thirty-three individuals to appear and
25
testify at trial. (ECF Nos. 92, 98, 99, 100, 101.)
26
Plaintiff subsequently filed four motions for the attendance at trial of incarcerated
27
witnesses McMann (ECF No. 94), Mathis (ECF No. 95), MacMillen (ECF No. 96), and
28
1

1 Garcia (ECF No. 97). Defendants opposed the motions on the grounds that Plaintiff had
2 not included the names of the proposed witnesses on his witness list (ECF No. 98), had
3 failed to comply with the Court’s Second Scheduling Order directing him to specify whether
4 the proposed witnesses would testify voluntarily, and had neglected to submit declarations
5 confirming the witnesses had actual knowledge of relevant facts. (ECF No. 106.)
6

The Court informed Plaintiff of the fees he would be required to pay to cover the

7 costs of having the proposed witnesses appear at trial. (ECF No. 104.) The Court also
8 advised Plaintiff that it found it so unlikely that all proposed witnesses would have
9 knowledge of non-redundant relevant facts and a willingness to testify at Plaintiffs’s request
10 that the Court was not inclined to issue subpoenas without justification being provided.
11

Plaintiff then filed a motion reflecting his desire to subpoena only the following ten

12 witnesses and he set forth reasons why their attendance was necessary: 1) C. Prouty, 2)
13 A. Martinez, 3) D. Peters, 4) L. Ocampo, 5) D. Biggs, 6) Stiles, 7) Corely, 8) Manthei, 9)
14 McMann, and 10) Garcia. (ECF Nos. 131, 132, 139.)1
15

After reviewing Plaintiff’s various filings in this matter and Defendants’ objections,

16 the Court finds good cause to grant Plaintiff’s request to have the seven individuals listed
17 below subpoenaed to trial and to have two incarcerated witnesses, inmates McMann and
18 Garcia, transported to trial. (It is not necessary to subpoena incarcerated witnesses.)
19 Inasmuch as Defendants have had notice of Plaintiff’s intent to compel such witnesses’
20 appearances, and the previous trial date was continued in part to address such witness
21 issues, Defendants will not be prejudiced by the order below. Even if the contrary were
22 true, the prejudice to Plaintiff in prohibiting him from calling relevant witnesses would
23 outweigh any conceivable prejudice to Defendants.
24
25
26
27
28

1

Plaintiff’s latest m otion was subm itted via an attorney who claim ed to be “assisting” Plaintiff in
this m atter. Plaintiff is proceeding in this action pro se. This m eans, quite sim ply, that Plaintiff is
representing him self. He has no attorney representing him . The Court can not and will not deal with
Plaintiff’s “assisting” counsel unless he/or she is substituted in as Plaintiff’s attorney of record. Except as
provided herein, the Court will not otherwise respond to or act upon any filings by anyone other than
Plaintiff on behalf of Plaintiff. Any further filings by “assisting” counsel will be stricken and deem ed of no
effect.

2

1

Providing for their presence does not mean they will all be permitted to testify. As

2 Plaintiff has been advised repeatedly, the Court will not indulge purely repetitive,
3 redundant, and cumulative testimony. Plaintiff shall keep this in mind while carefully
4 considering who he actually compels to attend trial and what each will be asked to testify
5 to.
6

The Court denies Plaintiff’s request to have inmate named “Manthei” appear at trial

7 because the California Department of Corrections and Rehabilitation has no record of an
8 inmate so named or an inmate with a prison number such as Plaintiff attributed to Manthei.
9
10

The Court hereby ORDERS as follows:
1.

11
12

Plaintiff’s request for subpoenas for Lt. Stiles, Lt. Corely, D. Biggs, L.
Ocampo, C. Prouty, A. Martinez, and D. Peters, is GRANTED;

2.

The Clerk’s Office is directed to issue subpoenas for Lt. Stiles, Lt. Corely, D.

13

Biggs, L. Ocampo, C. Prouty, A. Martinez, and D. Peters and send them to

14

attorney Gail Flatt (as requested by or on behalf of Plaintiff and to avoid

15

delay in service);

16

3.

17
18

(ECF Nos. 94 and 97) are GRANTED;
4.

19
20
21

Plaintiff’s motions for the attendance at trial of inmates McMann and Garcia

The Court will issue transportation writs for inmates McMann and Garcia;
and

5.

Plaintiff’s motions for the attendance at trial of inmates Mathis and MacMillen
(ECF Nos. 95 and 96) are DENIED without prejudice.

22 IT IS SO ORDERED.
23 Dated:
il0i0d
24

April 12, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

25
26
27
28
3