Glass v. Woodford et al

Filing 123

ORDER DENYING in Part Plaintiff's 113 Motion for the Attendance of Unincarcerated Witnesses, by Magistrate Judge Barbara A. McAuliffe on 11/19/2012. Deadline to Submit Witness Fees: January 11, 2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DONALD GLASS,

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CASE NO. 1:09-cv-00098-AWI-BAM PC
Plaintiff,

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v.

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ORDER DENYING IN PART PLAINTIFF’S
MOTION FOR THE ATTENDANCE OF
UNINCARCERATED WITNESSES

R. FIELDS, et al.,

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(ECF Nos. 113, 120)
Defendants.

DEADLINE TO SUBMIT WITNESS FEES:
JANUARY 11, 2013

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/
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I.

Background

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Plaintiff Donald Glass (“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 proceeding on the

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complaint, filed January 5, 2009, against Defendants Hamilton, Robles, and Bautista for use of

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excessive force in violation of the Eighth Amendment; Defendants Riddle and McDaniel for

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deliberate indifference to Plaintiff’s medical needs in violation of the Eighth Amendment; and

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Defendants Hamilton, Bautista, Logue, Robles, Riddle, Cedillos, and McDaniel for retaliation in

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violation of the First Amendment. (Ecf No. 27.) A jury trial is set for April 15, 2013, before the

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Hon. Anthony W. Ishii.

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In the second scheduling order issued on August 15, 2012, Plaintiff was notified that in order

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to obtain the attendance of unincarcerated witnesses who refused to testify voluntarily, notice of the

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names and locations of the witnesses had to be submitted by October 15, 2012. On October 18,

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2012, Plaintiff filed a motion for the attendance of unincarcerated witnesses, a motion for a subpoena
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duces tecum, and a declaration in support of the motion.1 (ECF Nos. 113, 115.) Defendants filed

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an opposition to the motion for the attendance of unincarcerated witnesses and a response to the

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declaration on October 26, 2012.2 (ECF No. 118, 119.) On November 1, 2012, Plaintiff filed a

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notice with the name and location of Lonnie Watson. (ECF No. 120.)

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II.

Motion for the Attendance of Unincarcerated Witnesses

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Plaintiff moves for the attendance of Secretary Roderick Q. Hickman, Secretary of the

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California Youth and Adult Correctional Agency Matthew L. Cate, Chief Deputy Warden Lonnie

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Watson, Associate Warden D. Sheppard-Brooks, Facility Captain R. Halberg, Facility Captain R.

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Lopez, Lieutenant Daniel Indendi, and Radiologist Tsung-Yi Stephen Huo at the trial of this matter.

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Defendants object on the grounds that a number of the witnesses, Brooks, Cate, Hickman, Watson,

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Lopez, Halberg, and Indendi do not have any relevant information and are being subpoenaed because

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they held a supervisory position. (Defendants’ Opposition to Plaintiff’s Motion for the Attendance

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of Unincarcerated Witnesses 3,3 ECF No. 118.) Defendants request that the subpoenas be denied

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to avoid the unnecessary expenditure of time and energy to have the subpoenas served and then make

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the party move to quash. (Id. at 4.)

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Plaintiff seeks the attendance of Secretary Roderick Q. Hickman stating he is retired and his

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address can be obtained through the California Department of Corrections Legal Affairs Office.

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(Plaintiff’s Notice of the Name and Location of Unincarcerated Witness 6, ECF No. 113.) Plaintiff

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was informed that in order to obtain the attendance of unincarcerated witnesses he was required to

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provide the Court with the location of the witness. Plaintiff has not provided the location of Mr.

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Hickman and the Court shall not conduct an investigation to find such information. Plaintiff’s

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motion for the attendance of Secretary Hickman is denied.

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Plaintiff seeks the attendance of Secretary Matthew Cate stating he has personal knowledge

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Plaintiff’s motion for a subpoena duces tecum shall be addressed by a separate order.

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Although docketed as a response to Plaintiff’s declaration, the document is a duplicate of the opposition to
the motion for the attendance of unincarcerated witnesses.
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All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

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of who covered up the collateral investigation of an incident that occurred on September 17, 2004.

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(ECF No. 113 at 10.) Plaintiff states that he wrote several letters to Secretary Cate requesting an

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investigation into the use of force and received either no response or a marginalized response.

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(Verified Decl. of Donald Glass ¶¶ 22, 23.) The Court finds that Plaintiff has failed to demonstrate

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that Secretary Cate has any information that would be relevant and admissible at the trial of this

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action. Plaintiff’s motion for the attendance of Secretary Cate is denied.

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Plaintiff requests the attendance of D. Sheppard-Brooks who was the Associate Warden in

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2004. (ECF No. 113 at 22.) Plaintiff fails to state a location at which the witness is to be served and

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therefore the motion for the attendance of D. Sheppard-Brooks is denied.

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Plaintiff requests that Chief Deputy Warden Lonnie Watson, Radiologist Huo, Facility

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Captain R Halberg, Lieutenant Daniel Indendi, and Facility Captain Lopez be served at the California

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State Prison, Corcoran.4

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Radiologist Huo, Facility Captain R Halberg, Lieutenant Daniel Indendi, and Facility Captain Lopez

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served with summonses to testify at trial, he must submit, for each witness, a money order made out

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to that witness in the amount of $100.17, by January 11, 2013.5 No witness will be served with a

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subpoena absent the timely submission of a money order.

If Plaintiff wishes to have Chief Deputy Warden Lonnie Watson,

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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 California

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State Prison, Corcoran.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motions for the attendance of Secretary Roderick Q. Hickman, Secretary
Matthew Cate, and Associate Warden D. Sheppard-Brooks are DENIED;

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At this juncture, the Court cannot make a finding that these witnesses do not possess relevant testimony and
the witness would be required to file a motion to quash the subpoena to avoid appearing at the trial of this action.
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The daily witness fee of $40.00, plus $60.17 for round trip mileage for one day. 28 U.S.C. § 1821. It is
108.4 miles, round trip, from Corcoran State Prison to the courthouse, and the current mileage reimbursement rate is
55.5 cents per mile.

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To have Chief Deputy Warden Lonnie Watson, Radiologist Huo, Facility Captain R

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Halberg, Lieutenant Daniel Indendi, and Facility Captain Lopez served with

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summonses to testify at trial, Plaintiff must submit, for each witness, a money order

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made out to that witness in the amount of $100.17 by January 11, 2013; and

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3.

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The Court cannot accept cash, and the money orders may not be made out to the
Court. The money orders must be made out in the witness’s name.

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IT IS SO ORDERED.
Dated:
10c20k

November 19, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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