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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEITH ZAVALA,

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Plaintiff,

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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.,

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Defendants.

(ECF No. 103)

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DEADLINE: NOVEMBER 26, 2012
/

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I.

Procedural History

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Plaintiff Keith Zavala is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the second amended

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complaint, filed May 24, 2010, against Defendants Martin, Chrones, Smith, Kays, Chandler, and

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Soto for violation of the Eighth Amendment. (ECF No. 19.) A jury trial is set for February 12,

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2013, before the undersigned. (ECF No. 100.) On September 25, 2012, an order issued requiring

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the parties to notify the Court if a settlement conference would be beneficial. (ECF No. 101.) On

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October 15, 2012, Defendants filed a notice that this action is not appropriate for mediation, and

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Plaintiff filed a motion for the attendance of incarcerated witnesses and notice of willingness to

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engage in settlement negotiations. (ECF Nos. 102, 103, 104.)

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II.

Settlement Conference

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The Court will only set a settlement conference if all parties are willing to engage in good

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faith negotiations to settle the action. If the parties determine that settlement could occur they are
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encouraged to negotiate and make a good faith effort to settle the case without the involvement of

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the Court. Since Defendants have indicated that mediation is not sought at this time, no settlement

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conference shall be scheduled.

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III.

Motion for the Attendance of Unincarcerated Witnesses

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Plaintiff has filed a motion seeking the attendance of unincarcerated witnesses who are

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unwilling to testify voluntarily. Pursuant to the Court’s scheduling order filed on August 22, 2012,

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Plaintiff was informed that if he wishes to have the Marshal serve any unincarcerated witnesses who

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refuse to testify voluntarily, he must submit money orders for the witnesses to the Court no later than

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November 26, 2012. (ECF No. 95, 4:3-16.) On October 16, 2012, Plaintiff filed a motion for the

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attendance of unincarcerated witnesses he wishes to have testify at trial.

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Plaintiff’s motion contains requests for the attendance of medical and mental health

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professionals whom he indicates will testify as expert witnesses. Plaintiff indicates that these

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witnesses will provide their opinion regarding Plaintiff’s medical or mental condition. It is clear

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from Plaintiff’s motion that these individuals will be asked to provide testimony as medical or

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mental health professionals as experts in their field about “scientific, technical, or other specialized

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knowledge” that will assist “the trier of fact to understand the evidence or to determine a fact in

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issue.” Fed. R. Civ. P. 702(a). In order to obtain the attendance of the medical and mental health

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professionals, Plaintiff will be required to pay the reasonable fees of each witness to prepare for and

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testify at trial. Accordingly, Plaintiff is advised that to obtain the attendance of Dr. Mazur, Dr.

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Schroeder, Dr. Bucker, Licensed Psychiatric Technician Townley, and Registered Nurse Pothier, he

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must submit evidence to the Court that he has paid the reasonable witness fees required by each

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Defendant to testify as an expert by November 26, 2012.

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Plaintiff is notified that to obtain the attendance of Corrections Counselor White, he must

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submit a money order, made payable to the witness. The money order, made payable to D. A. White

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in the amount of $128.80, must be submitted to the Court by November 26, 2012.1 No witness will

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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.

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be served with a subpoena absent the timely submission of a money order or proof that reasonable

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fees for the medical and mental health professionals have been paid.

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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 and proof of payment as required, the Court will direct the Marshal to serve the

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witnesses at the location provided by Plaintiff.

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IV.

Order

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Accordingly, pursuant to the second scheduling order, for each unincarcerated witness that

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Plaintiff wishes to have served with summonses to testify at trial, he must submit, for each witness,

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a money order made out to that witness in the amount of $128.80 or proof of payment of reasonable

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fees as described in this order by November 26, 2012. The Court cannot accept cash, and the money

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orders may not be made out to the Court. The money orders must be made out in the witness’s

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name.

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IT IS SO ORDERED.
Dated:
10c20k

October 23, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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