Villegas v. Schulteis et al

Filing 77

ORDER Denying Plaintiff's Motion To Amend Scheduling Order; Motion To Order Prison To Allow Him To Contact Incarcerated Witnesses; And Motion To Order Defendants To Subpoena Witnesses (Doc. 76 ), signed by Magistrate Judge Sandra M. Snyder on 5/19/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANTOS A. VILLEGAS,

1:09-cv-00493-AWI-SMS PC

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION TO
AMEND SCHEDULING ORDER; MOTION TO
ORDER PRISON TO ALLOW HIM TO
CONTACT INCARCERATED WITNESSES;
AND MOTION TO ORDER DEFENDANTS TO
SUBPOENA WITNESSES

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v.
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L. L. SCHULTEIS, et. al.,
Defendants.

(Doc. 76)
/

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Santos A. Villegas (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on the first

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amended complaint filed on August 24, 2009, against Defendants Rodriguez, Zucker, Soto,

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Martinez, Knight, Schulteiss, and Carrasco. Pursuant to the second scheduling order issued April

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6, 2011, motions for the attendance of incarcerated witnesses are due May 27, 2011. On May 18,

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2011, Plaintiff filed a motion to amend the scheduling order to allow him an additional thirty days

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to submit his motions for the attendance of incarcerated witnesses because he has not contacted them

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to see if they are willing to attend. Additionally, Plaintiff seeks an order requiring the institution to

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locate and subpoena two employees he wants to call as witnesses because he does not have the funds

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to pay the witness fees.

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),
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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (9th Cir. 1992). If the party seeking to amend the scheduling order fails to show due

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diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic v.

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Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Discovery in this action

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opened on April 23, 2010, and Plaintiff had over a year to contact his witnesses. Additionally, the

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scheduling order notifying Plaintiff of the deadline to file motions for the attendance of incarcerated

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witnesses was issued on April 6, 2011. Plaintiff has failed to show diligence in attempting to comply

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with the order and to allow a modification of the scheduling order without good cause would render

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scheduling orders essentially meaningless, and directly interfere with courts’ attempts to manage

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their dockets and with the standard course of litigation in actions such as this. Johnson, 975 F.2d

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at 610 (“A scheduling order is not a frivolous piece of paper, idly entered . . . .” (internal quotations

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and citation omitted)). Therefore Plaintiff’s request for a thirty day extension of time shall be

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denied.

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Plaintiff requests an order allowing him to communicate with incarcerated witnesses.

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Inmates may only correspond with one another if they obtain written authorization from the

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appropriate prison officials. Cal. Code Regs., tit. 15 § 3139 (2010). Further, the Court does not have

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jurisdiction in this action over anyone other than Plaintiff and Defendants, and cannot order that

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Plaintiff be allowed to correspond with his witnesses. E.g., City of Los Angeles v. Lyons, 461 U.S.

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95, 102, 103 S. Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation

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of Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 757-58 (1982); Jones v. City of Los

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Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006).

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Plaintiff’s motion for court assistance must be denied because he has not provided evidence

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that he completed the process to obtain written authorization from the appropriate prison officials.

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Cal. Code Regs., tit. 15 § 3139 (2010). Because the Court does not have jurisdiction in this action

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over anyone other than Plaintiff and Defendants, the Court can only make a request to prison

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officials and cannot order them to allow Plaintiff to correspond with his witnesses. E.g., City of Los

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Angeles, 461 U.S. at 102; Valley Forge Christian Coll., 454 U.S. at 471; Jones, 444 F.3d at 1126.

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Such a request shall not be made by the Court without assurances that Plaintiff has followed
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procedures and used the available resources at the prison to obtain written authorization after

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consideration by prison officials of safety, security, and procedural priorities. The Court recognizes

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that prison administrators "should be accorded wide-ranging deference in the adoption and execution

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of policies and practices that in their judgment are needed to preserve internal order and discipline

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and to maintain institutional security." Whitley v. Albers, 475 U.S. 312, 321-322 (1986) (quoting

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Bell v. Wolfish, 441 U.S. 520, 547 (1970). Therefore Plaintiff’s motion for an order allowing him

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to contact inmate witnesses shall be denied.

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Although the motion for communication between inmates will be denied, the Court will
attempt to facilitate limited written communication between Plaintiff and his witnesses. Plaintiff

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has provided the names and inmate numbers of the incarcerated witnesses. Plaintiff states that

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four of the witnesses are incarcerated at the same facility where he is housed. The Court will

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attempt to locate the inmates and contact the institution to request that communication be

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allowed for the limited purpose of allowing Plaintiff to inquire if they are willing to voluntarily

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testify at trial.

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Additionally, Plaintiff’s request that the Court order Defendants to subpoena two

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employees that he wishes to call as witnesses so he does not have to pay the witnesses fees shall

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be denied. As Plaintiff was notified via the second scheduling order, “[b]ecause no statute

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authorizes the use of public funds for these expenses in civil cases, the tendering of witness fees

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and travel expenses is required even if the party was granted leave to proceed in forma pauperis.”

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(Doc.72, 12-14.) The in forma pauperis status does not provide for the payment of witness fees or

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travel expenses. 28 U.S.C. § 1915; Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993); Tedder v.

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Odel, 890 F.2d 210, 211-12 (9th Cir. 1989). Nor is it Defendants responsibility to locate and

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subpoena Plaintiff’s witnesses. Plaintiff must comply with the second scheduling order and is

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responsible for locating his witnesses and submitting the witness fee by the court ordered

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deadline.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to amend the scheduling

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order, motion to order prison to allow him to contact inmate witnesses, and motion to order

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Defendants to subpoena witnesses, filed May 18, 2011, is DENIED.

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IT IS SO ORDERED.
Dated:
cm411

May 19, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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