McElroy v. Cox et al

Filing 142

ORDER DENYING 137 Plaintiff's Motion for Attendance of Incarcerated Witness at Trial signed by District Judge Lawrence J. O'Neill on 5/17/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LATWAHN McELROY,

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1:08-cv-01221-LJO-GSA-PC

Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
FOR ATTENDANCE OF INCARCERATED
WITNESS AT TRIAL
(Doc. 137.)

ROY COX, et al.,

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Defendants.
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I.

BACKGROUND

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This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Latwahn McElroy, a state

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prisoner proceeding pro se and in forma pauperis. Plaintiff is presently incarcerated at High Desert

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State Prison in Susanville, California. This case is scheduled for jury trial to commence on June 19,

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2012 at 8:30 a.m. before District Judge Lawrence J. O’Neill.

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On May 16, 2012, Plaintiff renewed his motion for the attendance of an incarcerated witness

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at trial. (Doc. 137.)

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II.

MOTION FOR ATTENDANCE OF INMATE WITNESS

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In the Court’s Fourth Scheduling Order of March 9, 2012, Plaintiff was advised that before

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the Court will issue an order to transport an incarcerated witness to trial, Plaintiff must file a motion

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stating the name, address, and prison identification number of such witness, and submit a declaration

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showing that the witness is willing to testify and has actual knowledge of relevant facts. (Doc. 105
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at 2-3.) The Order specifically requires Plaintiff to file a “declaration[] showing that each witness

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is willing to testify.”1 (Id. at 3:3.)

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Plaintiff requests the attendance at trial of inmate witness Larry Ridge, CDCR #V-77540,

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who “may be” presently housed at the California Medical Facility in Vacaville, California. (Doc.

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137 at 1.) Plaintiff has submitted inmate Ridge’s declaration, dated on February 12, 2010 and signed

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under penalty of perjury, describing events demonstrating that Ridge was an eye- and ear-witness

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to the February 7, 2007 incident at issue in this action during which Plaintiff was allegedly assaulted

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by defendants. (Doc. 137 at 2-3.)

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Plaintiff has not fully complied with the requirements of the Fourth Scheduling Order. While

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Plaintiff has sufficiently identified his prospective inmate witness and submitted a declaration

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demonstrating that the witness has actual knowledge of relevant facts, there is no indication that

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Larry Ridge is willing to testify at Plaintiff’s trial. Plaintiff only states that the witness “is desired

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to be present at trial” and “the jury should be allowed to hear the witness testify.” (Doc. 137 at 1,

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4 ¶1.) The Court will not consider issuing an order to transport Larry Ridge to trial without a motion

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which complies with the requirements of the Fourth Scheduling Order. Therefore, Plaintiff’s motion

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for the attendance of an incarcerated witness shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for attendance

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of an inmate witness at trial is DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

May 17, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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The Fourth Scheduling Order requires that the willingness of the prospective witness “be shown in one of
two ways: (1) the party himself can swear by declaration under penalty of perjury that the prospective witness has
informed the party that he or she is willing to testify voluntarily without being subpoenaed, in which declaration the
party must state when and where the prospective witness informed the party of his willingness; or (2) the party can
serve and file a declaration, signed under penalty of perjury by the prospective witness, in which the witness states
that he or she is willing to testify without being subpoenaed.” (Doc. 105 at 3:6-12.)

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