Kunkel v. Dill et al

Filing 188

AMENDED SECOND SCHEDULING ORDER signed by Magistrate Judge Barbara A. McAuliffe on 03/22/2013. Telephonic Trial Confirmation Hearing set for 6/6/2013 at 10:00 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe; Jury Trial set for 7/23/2013 at 08:30 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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) 1:09-cv-00686-BAM PC
)
Plaintiff,
) AMENDED SECOND SCHEDULING
) ORDER
v.
)
) Telephonic Trial Confirmation
N. DILL, et al.,
) Hearing: June 6, 2013, at 10:00 a.m. in
) Courtroom 8 (BAM)
Defendants.
)
) Jury Trial: July 23, 2013, at 8:30 a.m. in
) Courtroom 8 (BAM)
)
______________________________________________________________________________
PATRICK KUNKEL,

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Plaintiff Patrick Kunkel (“Plaintiff”) is a California state prisoner proceeding pro se and

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in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff's complaint, filed January 6, 2010, against Defendants Guadalupe M. Garcia, Robaina,

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Dileo and Mackey for deliberate indifference in violation of the Eighth Amendment. The

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parties have consented to Magistrate Judge jurisdiction. Pursuant to Rule 16(b) of the Federal

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Rules of Civil Procedure, the Court sets an amended schedule for this litigation.

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The parties are required to file pre-trial statements in accordance with the schedule set

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forth herein. In addition to the matters already required to be addressed in the pre-trial statement

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in accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in

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order to obtain the attendance of witnesses. The procedures and requirements for making such a

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showing are outlined in detail below. Plaintiff is advised that failure to comply with the
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procedures set forth below may result in the preclusion of any and all witnesses named in his

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pre-trial statement and trial.

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At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of

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the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of

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trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to

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produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or

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witness testimony. If Plaintiff wants to call witnesses to testify, he must follow certain

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procedures to ensure that the witnesses will be at the trial and available to testify.

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1.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to

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Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give

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testimony cannot come to court unless the Court orders the warden or other custodian to permit

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the witness to be transported to court. The Court will not issue such an order unless it is satisfied

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that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual

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knowledge of relevant facts.

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A party intending to introduce the testimony of incarcerated witnesses who have agreed

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voluntarily to attend the trial must serve and file concurrent with the pre-trial statement a written

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motion for a court order requiring that such witnesses be brought to court at the time of trial.

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The motion must: (1) state the name, address, and prison identification number of each such

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witness; and (2) be accompanied by declarations, signed under penalty of perjury, showing that

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each witness is willing to testify and that each witness has actual knowledge of relevant facts.

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The motion should be entitled “Motion for Attendance of Incarcerated Witnesses.”

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The willingness of the prospective witness can be shown in one of two ways: (1) the

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party himself can swear by declaration under penalty of perjury that the prospective witness has

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informed the party that he or she is willing to testify voluntarily without being subpoenaed, in

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which declaration the party must state when and where the prospective witness informed the

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party of this willingness; or (2) the party can serve and file a declaration, signed under penalty of

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perjury by the prospective witness, in which the witness states that he or she is willing to testify

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without being subpoenaed.

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The prospective witness’s actual knowledge of relevant facts can be shown in one of two

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ways: (1) if the party has actual firsthand knowledge that the prospective witness was an

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eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in Plaintiff’s cell

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and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff

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may swear to the cellmate’s ability to testify), the party himself can swear by declaration under

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penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve

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and file a declaration signed under penalty of perjury by the prospective witness in which the

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witness describes the relevant facts to which the prospective witness was an eye- or ear-witness.

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Whether the declaration is made by the party or by the prospective witness, it must be specific

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about the incident, when and where it occurred, who was present, and how the prospective

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witness happened to be in a position to see or to hear what occurred at the time it occurred.

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The Court will review and rule on the motion for attendance of incarcerated witnesses,

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specifying which prospective witnesses must be brought to court. Subsequently, the Court will

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issue the order necessary to cause the witness’s custodian to bring the witness to court.

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Motions for the attendance of incarcerated witnesses, if any, must be filed on or
before May 9, 2013. Oppositions, if any, must be filed on or before May 23, 2013.
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Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who

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refuse to testify voluntarily, the party should submit with his pre-trial statement a motion for the

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attendance of such witnesses. Such motion should be in the form described above. In addition,

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the party must indicate in the motion that the incarcerated witnesses are not willing to testify

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voluntarily.

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3.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to

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Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated

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witness’s voluntary attendance to notify the witness of the time and date of trial. No action need

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be sought or obtained from the Court.

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4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify

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voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the

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party seeking the witness’s presence must tender an appropriate sum of money for the witness.

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Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness

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fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821.
If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and

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location of each unincarcerated witness. The Court will calculate the travel expense for each

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unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each

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witness, submit a money order made payable to the witness for the full amount of the witness’s

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travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the

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unincarcerated witness by the United States Marshal unless the money order is tendered to the

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Court. Because no statute authorizes the use of public funds for these expenses in civil cases, the

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tendering of witness fees and travel expenses is required even if the party was granted leave to

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proceed in forma pauperis.

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If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must submit the money orders to the Court no later

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than June 6, 2013. In order to ensure timely submission of the money orders, Plaintiff should

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notify the Court of the names and locations of his witnesses, in compliance with step one, as

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soon as possible.

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The parties are advised that failure to file pre-trial statements as required by this order

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may result in the imposition of appropriate sanctions, which may include dismissal of the action

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or entry of default.

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Accordingly, the Court HEREBY ORDERS as follows:

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1.

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Barbara A. McAuliffe on June 6, 2013, at 10:00 a.m. in Courtroom 8;

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2.

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4.

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Defendants shall serve and file a pretrial statement as described in this order on or

before May 23, 2013;

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Plaintiff shall serve and file a pretrial statement as described in this order on or

before May 9, 2013;

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Counsel for Defendants is required to arrange for the participation of Plaintiff in

the telephonic pretrial conference and to initiate the telephonic hearing at [phone];

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This matter is set for jury trial before the Honorable Barbara A. McAuliffe on

July 23, 2013, at 8:30 a.m. in Courtroom 8;

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This matter is set for telephonic trial confirmation hearing before the Honorable

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In addition to electronically filing their pretrial statement, Defendants shall e-mail

the pretrial statement to: [e-mail];

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7.

If Plaintiff intends to call incarcerated witnesses at time of trial, Plaintiff shall

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serve and file a motion for attendance of incarcerated witnesses as described in this order on or

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before May 9, 2013;

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8.

The opposition to the motion for the attendance of incarcerated witnesses, if any,

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shall be filed on or before May 23, 2013; and

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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse

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to testify voluntarily, Plaintiff must submit the money orders, as described in subsection 4 of this

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order, to the Court on or before June 6, 2013;

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IT IS SO ORDERED.
Dated:

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/s/ Barbara

March 22, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

10c20kb8554

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