Foster v. Enenmoh et al

Filing 118

ORDER Addressing Proposed Witness R. Scharffenberg, M.D., and Requiring Plaintiff to Submit Check or Money on or before January 14, 2014; ORDER DIRECTING Clerk's Office to Serve Courtesy Copy of Order to High Desert State Prison and Requesting Litigation Office Provide Plaintiff with a Copy by 12:00 P.M. on December 20, 2013, signed by District Judge Lawrence J. O'Neill on 12/19/2013. (Case Management Deadline: 1/14/2014) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL LOUIS FOSTER,
Plaintiff,

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v.

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A. ENENMOH,

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Defendant.

Case No. 1:08-cv-01849-LJO-SKO PC
ORDER ADDRESSING PROPOSED
WITNESS R. SCHARFFENBERG, M.D.,
AND REQUIRING PLAINTIFF TO SUBMIT
CHECK OR MONEY ON OR BEFORE
JANUARY 14, 2014
(Docs. 96 and 105)
ORDER DIRECTING CLERK’S OFFICE TO
SERVE COURTESY COPY OF ORDER TO
HIGH DESERT STATE PRISION AND
REQUESTING LITIGATION OFFICE
PROVIDE PLAINTIFF WITH A COPY BY
12:00 P.M. ON DECEMBER 20, 2013

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_____________________________________/
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This matter is set for jury trial on February 4, 2014.

During the telephonic trial

confirmation hearing held on December 19, 2013, at 8:00 a.m., Plaintiff represented it was his
intention to have Dr. R. Scharffenberg served by the United States Marshal with a subpoena ad
testificandum. Plaintiff stated that he complied with the terms of the Second Scheduling Order by
identifying Dr. Scharffenberg and providing his location, but the Court did not inform him of the
check or money order amount he needed to submit to have Dr. Scharffenberg served with a
subpoena, per the terms of the order.

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The Second Scheduling Order provided, in relevant part:

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If a prospective witness is not incarcerated, and he or she refuses to testify
voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In
addition, the party seeking the witness’s presence must tender an appropriate sum
of money for the witness. Id. In the case of an unincarcerated witness, the
appropriate sum of money is the daily witness fee of $40.00 plus the witness’s
travel expenses. 28 U.S.C. § 1821.

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If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses
who refuse to testify voluntarily, Plaintiff must first notify the Court in writing of
the name and location of each unincarcerated witness. The Court will calculate the
travel expense for each unincarcerated witness and notify Plaintiff of the amount(s).
Plaintiff must then, for each witness, submit a money order made payable to the
witness for the full amount of the witness’s travel expenses plus the daily witness
fee of $40.00. The subpoena will not be served upon the unincarcerated witness by
the United States Marshal unless the money order is tendered to the Court.
Because no statute authorizes the use of public funds for these expenses in civil
cases, the tendering of witness fees and travel expenses is required even if the party
was granted leave to proceed in forma pauperis.
If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who
refuse to testify voluntarily, Plaintiff must submit the money orders to the
Court no later than December 5, 2013. In order to ensure timely submission
of the money orders, Plaintiff must notify the Court of the names and locations
of his witnesses, in compliance with step one, on or before November 5, 2013.

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The Court is not clairvoyant and it did not divine from Plaintiff’s mere witness list that he

17 had the ability and willingness to compensate unincarcerated witnesses who refuse to testify
18 voluntarily. The Court notes that in its lengthy experience with pro se civil rights cases, it has
19 never before had an indigent plaintiff rely solely on a mere witness list to place the Court on notice
20 of (1) ability and (2) willingness to compensate an unincarcerated witness who will not testify
21 voluntarily. Prudence dictates that litigants make clear the relief they are seeking, and the failure
22 to do so with respect to a trial witness in a situation such as this is an issue not previously
23 encountered by the Court.
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If Plaintiff’s family is willing and able to submit the necessary funds, as Plaintiff’s

25 represented, there is still sufficient time for the United States Marshal to serve Plaintiff’s witness.
26 Plaintiff represented that Dr. R. Scharffenberg is employed at California Substance Abuse
27 Treatment Facility and State Prison, 900 Quebec Avenue, Corcoran, CA, 93212. (Doc. 105, Pl.
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1 Pretrial. Stmt., p. 22.) Assuming that information is correct, Dr. Scharffenberg is entitled to a
2 check or money order, made payable to him, for $101.97.1,2 28 U.S.C. § 1821; Fed. R. Civ. P. 45.
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Accordingly, the Court HEREBY ORDERS as follows:

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1.

For Plaintiff to obtain an order directing the United States Marshal to personally

5 serve Dr. Sharffenberg with a subpoena ad testificandum, Plaintiff must, on or before January 14,
6 2014, submit to the Court a check or money order made payable to Dr. Scharffenberg in the
7 amount of $101.97;
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2.

The Clerk’s Office shall serve a courtesy copy of this order on the Litigation Office

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3.

In an effort to expedite Plaintiff’s receipt of this order, the Litigation Office at High

11 Desert State Prison is requested to provide Plaintiff with a copy of this order no later than 12:00
12 p.m. on Friday, December 20, 2013.
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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

December 19, 2013

UNITED STATES DISTRICT JUDGE
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DEAC_Signature-END:

b2e55c0d

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The Court cannot and will not act as counsel or investigator for Plaintiff and this information is therefore unverified.

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Daily witness fee of $40.00, plus travel expenses for 109.68 miles, roundtrip, at the rate of 56.5 cents per mile.

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