Zavala v. Chrones et al

Filing 105

ORDER signed by Magistrate Judge Barbara A. McAuliffe on 10/23/2012 notifying Plaintiff of witness fees and costs due to subpoena unincarcerated witnesses who refuse to testify voluntarily re 103 Motion. (Case Management Deadline: 11/26/2012).(Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KEITH ZAVALA, 10 Plaintiff, 11 12 CASE NO. 1:09-cv–01352-BAM PC ORDER NOTIFYING PLAINTIFF OF WITNESS FEES AND COSTS DUE TO SUBPOENA UNINCARCERATED WITNESSES WHO REFUSE TO TESTIFY VOLUNTARILY v. CHRIS CHRONES, et al., 13 Defendants. (ECF No. 103) 14 DEADLINE: NOVEMBER 26, 2012 / 15 16 I. Procedural History 17 Plaintiff Keith Zavala is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the second amended 19 complaint, filed May 24, 2010, against Defendants Martin, Chrones, Smith, Kays, Chandler, and 20 Soto for violation of the Eighth Amendment. (ECF No. 19.) A jury trial is set for February 12, 21 2013, before the undersigned. (ECF No. 100.) On September 25, 2012, an order issued requiring 22 the parties to notify the Court if a settlement conference would be beneficial. (ECF No. 101.) On 23 October 15, 2012, Defendants filed a notice that this action is not appropriate for mediation, and 24 Plaintiff filed a motion for the attendance of incarcerated witnesses and notice of willingness to 25 engage in settlement negotiations. (ECF Nos. 102, 103, 104.) 26 II. Settlement Conference 27 The Court will only set a settlement conference if all parties are willing to engage in good 28 faith negotiations to settle the action. If the parties determine that settlement could occur they are 1 1 encouraged to negotiate and make a good faith effort to settle the case without the involvement of 2 the Court. Since Defendants have indicated that mediation is not sought at this time, no settlement 3 conference shall be scheduled. 4 III. Motion for the Attendance of Unincarcerated Witnesses 5 Plaintiff has filed a motion seeking the attendance of unincarcerated witnesses who are 6 unwilling to testify voluntarily. Pursuant to the Court’s scheduling order filed on August 22, 2012, 7 Plaintiff was informed that if he wishes to have the Marshal serve any unincarcerated witnesses who 8 refuse to testify voluntarily, he must submit money orders for the witnesses to the Court no later than 9 November 26, 2012. (ECF No. 95, 4:3-16.) On October 16, 2012, Plaintiff filed a motion for the 10 attendance of unincarcerated witnesses he wishes to have testify at trial. 11 Plaintiff’s motion contains requests for the attendance of medical and mental health 12 professionals whom he indicates will testify as expert witnesses. Plaintiff indicates that these 13 witnesses will provide their opinion regarding Plaintiff’s medical or mental condition. It is clear 14 from Plaintiff’s motion that these individuals will be asked to provide testimony as medical or 15 mental health professionals as experts in their field about “scientific, technical, or other specialized 16 knowledge” that will assist “the trier of fact to understand the evidence or to determine a fact in 17 issue.” Fed. R. Civ. P. 702(a). In order to obtain the attendance of the medical and mental health 18 professionals, Plaintiff will be required to pay the reasonable fees of each witness to prepare for and 19 testify at trial. Accordingly, Plaintiff is advised that to obtain the attendance of Dr. Mazur, Dr. 20 Schroeder, Dr. Bucker, Licensed Psychiatric Technician Townley, and Registered Nurse Pothier, he 21 must submit evidence to the Court that he has paid the reasonable witness fees required by each 22 Defendant to testify as an expert by November 26, 2012. 23 Plaintiff is notified that to obtain the attendance of Corrections Counselor White, he must 24 submit a money order, made payable to the witness. The money order, made payable to D. A. White 25 in the amount of $128.80, must be submitted to the Court by November 26, 2012.1 No witness will 26 27 28 1 The daily witness fee of $40.00, plus $88.80 for round trip mileage for one day. 28 U.S.C. § 1821. It is 160 miles, round trip, from Kern Valley State Prison to the courthouse, and the current mileage reimbursement rate is 55.5 cents per mile. 2 1 be served with a subpoena absent the timely submission of a money order or proof that reasonable 2 fees for the medical and mental health professionals have been paid. 3 Finally, to the extent Plaintiff is unsure where the witness is currently located, the Court and 4 the Marshal cannot and will not conduct an investigation on Plaintiff’s behalf. Ascertaining the 5 location of Plaintiff’s non-incarcerated witnesses is Plaintiff’s responsibility. If Plaintiff submits the 6 money orders and proof of payment as required, the Court will direct the Marshal to serve the 7 witnesses at the location provided by Plaintiff. 8 IV. Order 9 Accordingly, pursuant to the second scheduling order, for each unincarcerated witness that 10 Plaintiff wishes to have served with summonses to testify at trial, he must submit, for each witness, 11 a money order made out to that witness in the amount of $128.80 or proof of payment of reasonable 12 fees as described in this order by November 26, 2012. The Court cannot accept cash, and the money 13 orders may not be made out to the Court. The money orders must be made out in the witness’s 14 name. 15 16 IT IS SO ORDERED. Dated: 10c20k October 23, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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