Pulliam v. Lozano et al

Filing 101

AMENDED SECOND SCHEDULING ORDER signed by Magistrate Judge Michael J. Seng on 7/31/2013. Telephonic Pretrial Conference: October 18, 2013 at 1:30 p.m. in Courtroom 6 (MJS); Jury Trial set for 12/10/2013 at 08:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH R. PULLIAM,

CASE NO. 1:07-cv-0964-MJS (PC)

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AMENDED SECOND SCHEDULING
ORDER

Plaintiff,

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v.

Telephonic Pretrial
Conference: October 18, 2013, at 1:30 p.m.
in Courtroom 6 (MJS)

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M. LOZANO, et al.
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Defendants.

Jury Trial:

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December 10, 2013, at 8:30
a.m. in Courtroom 6 (MJS)

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Plaintiff Joseph R. Pulliam (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis. Plaintiff’s civil rights action seeks relief pursuant to 42 U.S.C. § 1983.

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Plaintiff initiated this action on July 5, 2007.

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proceeding against Defendants Mason and Lozano for the use of excessive force in

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violation of the Eighth Amendment of the United States Constitution. (Id.) The parties

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have consented to Magistrate Judge jurisdiction. (ECF Nos. 98, 99.)

(Compl., ECF No. 1.)

The action is

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Defendants’ motion for summary judgment (ECF No. 62) has been denied (ECF

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Nos. 91, 94). Accordingly, pursuant to Rule 16(b) of the Federal Rules of Civil Procedure,

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the Court will by this order set a further 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 which 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 cellmate was present and observed the

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incident, Plaintiff may swear to the cellmate’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 September 18, 2013. Oppositions, if any, must be filed on or before

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October 11, 2013.

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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.

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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 United States Marshal serve any unincarcerated

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witnesses who refuse to testify voluntarily, Plaintiff must submit a notice with the

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Court that he is requesting service by the United States Marshal and is willing to

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reimburse the United States Marshal for costs of personal service. Upon receipt of
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such notice, the Court will inform Plaintiff of the costs and require Plaintiff to submit

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payment to the Marshal prior to directing the Marshal to effect service of the subpoenas.

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Plaintiff should notify the Court of the names and locations of his witnesses as soon as

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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.

This matter is set for a telephonic trial conformation hearing before the

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Honorable Michael J. Seng on October 18, 2013, at 1:30 p.m., in Courtroom

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6;

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2.

Counsel for Defendants is required to arrange for the participation of Plaintiff

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in the telephonic pretrial conference and to contact Courtroom Deputy Laurie

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Yu at [phone] a week before the conference to determine what

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number to call to initiate the conference;

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3.

December 10, 2013, at 8:30 a.m. in Courtroom 6;

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4.

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Defendants shall serve and file a pretrial statement as described in this order
on or before September 18, 2013;

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Plaintiff shall serve and file a pretrial statement as described in this order on
or before September 18, 2013;

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This matter is set for jury trial before the Honorable Michael J. Seng on

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

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serve and file a motion for attendance of incarcerated witnesses as

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described in this order on or before September 18, 2013;

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if any, shall be filed on or before September 25, 2013; and

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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
refuse to testify voluntarily, Plaintiff must submit the names and locations of
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these witnesses as soon as possible as described in this order, and no later

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than September 18, 2013.

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IT IS SO ORDERED.

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Dated:
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July 31, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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