Harris v. Rios et al

Filing 140

ORDER REGARDING Letters; Defendant Gonzaga to Advise Court within Five (5) Days of any Change in Availability for Trial signed by Magistrate Judge Michael J. Seng on 6/17/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONTE ROLANDO HARRIS ,

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Plaintiff,
v.

ORDER REGARDING LETTERS
(ECF Nos. 137, 138, 139)

H.A. RIOS, et al.,

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CASE NO. 1:09-cv-00781-MJS (PC)

Defendants.

DEFENDANT GONZAGA TO ADVISE
COURT WITHIN FIVE (5) DAYS OF ANY
CHANGE IN AVAILABILITY FOR TRIAL

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Plaintiff is a federal prisoner proceeding pro se in this civil rights action filed April

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27, 2009 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388 (1971). The action proceeds on Plaintiff’s First Amendment

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claim against Defendants Gonzaga, Cobb, Zaragoza, and Valero for delay in delivery of

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incoming seized mail; his First Amendment claim against Defendant Cobb for

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interception and seizure of outgoing mail; and his Fifth Amendment due process claim

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against Defendants Estrada, Cobb, Valero, and Zaragoza for failing to provide notice his

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mail was seized.

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The matter previously was set for trial on June 2, 2015. (ECF No. 116.) However,

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during the May 27, 2015 telephonic trial confirmation hearing, defense counsel

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requested a continuance due to the unavailability of Defendant Gonzaga. Plaintiff raised

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the possibility of dismissing his claims against Defendant Gonzaga. Defense counsel did

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not oppose a possible dismissal but nonetheless maintained his request for a

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continuance because he believed Defendant Gonzaga is a necessary witness at trial.

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Defendant’s request was granted and trial was continued to August 20, 2015. (ECF No.

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133.)

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On June 9, June 10, and June 17, 2015, Plaintiff filed letters (ECF Nos. 137, 138,

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and 139, respectively), stating that he remains at the Fresno County Jail awaiting his

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August trial, and asking to be returned to his regular institution in Indiana.

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On June 1, 2015, the Court amended the writ of habeas corpus ad testificandum,

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thereby advising Plaintiff’s custodian of the continuance of trial in this action. Nothing

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about this case requires Plaintiff’s presence here other than for trial, and the Court is

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sympathetic to Plaintiff’s desire to be returned to his primary facility during this delay

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which resulted from no fault of his own. However, the Court has no control over Plaintiff’s

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custody status or power to order him returned to Indiana.

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The Court will, however, consider trying to advance the trial date, to the extent

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possible, in the event Defendant Gonzaga becomes available for trial sooner than

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originally anticipated.

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Accordingly, defense counsel is HEREBY ORDERED to notify the Court,

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forthwith, and certainly within five (5) days of any change in Defendant Gonzaga’s

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availability for trial.

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IT IS SO ORDERED.
Dated:

June 17, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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