Brush v. Woodford et al

Filing 132

ORDER GRANTING 128 Motion for Extension; ORDER Notifying Plaintiff of Witness Fees and Costs due to Subpoena Unincarcerated Witnesses Who Refuse to Testify Voluntarily 129 , signed by Magistrate Judge Sandra M. Snyder on 06/08/2011. (Fourteen (14) day deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARY H. BRUSH,

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CASE NO. 1:07-cv-01009-LJO-SMS PC
Plaintiff,

ORDER GRANTING PLAINTIFF’S MOTION
FOR A TEN DAY EXTENSION OF TIME

v.
(Doc. 128)

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J. WOODFORD, et al.,
Defendants.

ORDER NOTIFYING PLAINTIFF OF WITNESS
FEES AND COSTS DUE TO SUBPOENA
UNINCARCERATED WITNESSES WHO
REFUSE TO TESTIFY VOLUNTARILY
/ (Doc. 129)

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Plaintiff Gary H. Brush (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is set for jury trial on

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August 29, 2011, before the Honorable Lawrence J. O’Neill. Pursuant to the Court’s scheduling

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order filed on April 6, 2011, Plaintiff was informed that if he wishes to have the Marshal serve any

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unincarcerated witnesses who refuse to testify voluntarily, he must submit money orders for the

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witnesses to the Court no later than June 6, 2011. (Doc. 124, 4:3-24.)

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On May 9, 2011, Plaintiff filed a pretrial statement with the names and locations of seven

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unincarcerated witnesses he wishes to have testify at trial. Four of the witnesses are or were

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employed at Pleasant Valley State Prison, one is employed by the California Department of

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Corrections and Rehabilitation, and two are private physicians. On May 11, 2011, Plaintiff

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submitted a motion for an extension of time. (Doc. 128.) On May 12, 2011, Plaintiff filed a motion

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for a court order requiring the attendance of witnesses, identifying four unincarcerated witnesses he
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intends to call at trial.1 (Doc. 129.) Initially, the Court will grant Plaintiff’s motion for an extension

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of time.

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Plaintiff is notified that for each witness, he must submit a money order, made payable to the

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witness, to the Court. Since Plaintiff was not notified of the amount of the witness fees prior to the

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date in the scheduling order, the Court will extend time and the witness fees must be submitted to

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the Court by July 18, 2011. To obtain the attendance of Licensed Vocational Nurse Hall and

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Correctional Officer Long, Plaintiff will need to submit a money order, for each witness, in the

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amount of $101.20.2 No witness will be served with a subpoena absent the timely submission of a

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money order.

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It appears to the Court that Plaintiff may have misunderstood the scheduling order. Plaintiff

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has identified witnesses; Dr. Igbinosa, Dr. Rahimifar, Dr. W. Thomas, Dr. Diep, and Dr. Brian

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Grossman; to testify at trial. Plaintiff has failed to provide sufficient information to determine the

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relevance of these witnesses in this action. These are witnesses that may potentially command expert

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witness fees. Plaintiff’s motion does not suggest his ability to compensate these witnesses or

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indicate their involvement in the incidents alleged. Before any additional court resources are

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expended, Plaintiff will need to provide an offer of proof as to the relevance of these witnesses and

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his ability to compensate them.

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For each physician witness, Plaintiff will need to inform the Court of the witness’

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involvement in the incidents alleged and their anticipated testimony. For example, while Plaintiff

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states that Dr. Diep and Dr. Rahimifar are expected to testify to the seriousness of his injuries, it is

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not clear if these individuals treated Plaintiff or if he is planning to use them as experts. Once it is

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determined that a subpoena will be issued, the Court will notify Plaintiff of the amount that needs

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to be tendered for each witness. Additionally, Plaintiff indicates that he has retained Dr. Grossman

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as an expert. The Court does not need to issue a subpoena for witnesses that are voluntarily

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Plaintiff identified Dr. Brian Grossman in his motion for the attendance of witnesses, however the Court
notes he is not listed on Plaintiff’s witness list in his pretrial statement.
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The daily witness fee of $40.00, plus $61.20 for round trip mileage for one day. 28 U.S.C. § 1821. It is
120 miles, round trip, from Pleasant Valley State Prison to the courthouse, and the current mileage reimbursement
rate is 51 cents per mile.

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appearing for Plaintiff.

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Finally, to the extent Plaintiff is unsure where the witness is currently located, the Court and

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the Marshal cannot and will not conduct an investigation on Plaintiff’s behalf. Ascertaining the

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location of Plaintiff’s non-incarcerated witnesses is Plaintiff’s responsibility. If Plaintiff submits the

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money orders as required, the Court will direct the Marshal to serve the witnesses at the location

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provided by Plaintiff.

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Accordingly, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for an extension of time, filed May 11, 2011, is GRANTED;

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2.

If Plaintiff wishes to have Licensed Vocational Nurse Hall and Correctional Officer

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Long served with summonses to testify at trial, he must submit, for each witness, a

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money order made out to that witness in the amount of $101.20 by July 18, 2011.

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The Court cannot accept cash, and the money orders may not be made out to the

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Court. The money orders must be made out in the witness’s name; and

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If Plaintiff wishes to have physician witnesses served with a summons, he must,

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within fourteen days from the date of service of this order, file an offer of proof as

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to the relevance of the individual witnesses and Plaintiff’s ability to compensate

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them.

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IT IS SO ORDERED.

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Dated:
cm411

June 8, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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