Thomas v. Stanislaus County et al

Filing 32

SECOND SCHEDULING ORDER; ORDER Requiring Parties to Notify Court Whether they Consent to Magistrate Judge Jurisdiction within Thirty Days; ORDER Directing Clerk's Office to Send Local Rule 281 to Plaintiff signed by Magistrate Judge Sheila K. Oberto on 10/01/2012. Trial Confirmation Hearing set for 5/28/2013 at 03:00 PM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii; Jury Trial set for 7/9/2013 at 08:30 AM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DERRICK J. THOMAS,

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Plaintiff,

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CASE NO. 1:09-cv-02015-AWI-SKO PC
SECOND SCHEDULING ORDER

v.

ORDER REQUIRING PARTIES TO
NOTIFY COURT WHETHER THEY
CONSENT TO MAGISTRATE JUDGE
JURISDICTION WITHIN THIRTY DAYS

STANISLAUS COUNTY, et al.,

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Defendants.
ORDER DIRECTING CLERK’S OFFICE
TO SEND LOCAL RULE 281 TO
PLAINTIFF

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Telephonic Trial Confirmation
Hearing:
May 28, 2013, at 3:00 p.m. in
Courtroom 2 (AWI)

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Jury Trial:
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/

July 9, 2013, at 8:30 a.m. in
Courtroom 2 (AWI)

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Plaintiff Derrick J. Thomas, a prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on November 17, 2009. This action is proceeding

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against Defendants Stanislaus County Board of Supervisors, Stanislaus County Sheriff’s Department,

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Sheriff Adam Christianson, Policy Manager Gina Leguria, Captain William Duncan, Lieutenants

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Ronald Lloyd and Gregg Clifton, and Sergeant M. White arising out of the failure to provide Plaintiff

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with adequate outdoor exercise. The deadline for filing pretrial dispositive motions was September

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7, 2012, and no motions were filed. Accordingly, pursuant to Rule 16(b) of the Federal Rules of

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Civil Procedure, the Court will by this order set a further schedule for this litigation.

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The parties are required to file pretrial statements in accordance with the schedule set forth

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herein. In addition to the matters already required to be addressed in the pretrial statement in

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

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

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are outlined in detail below. Plaintiff is advised that failure to comply with the procedures set forth

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below may result in the preclusion of any and all witnesses named in his pretrial statement.

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

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

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

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

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

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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 Testify

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Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot

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come to court unless the Court orders the warden or other custodian to permit the witness to be

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transported to court. The Court will not issue such an order unless it is satisfied that: (a) the

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prospective witness is willing to attend; and (b) the prospective witness has actual knowledge of

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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 pretrial 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. The

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

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(2) be accompanied by declarations showing that each witness is willing to testify and that each

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witness has actual knowledge of relevant facts. The motion should be entitled “Motion for

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Attendance of Incarcerated Witnesses.”

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

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

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the party that he or she is willing to testify voluntarily without being subpoenaed, in which
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declaration the party must state when and where the prospective witness informed the party of this

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

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prospective witness, in which the witness states that he or she is willing to testify without being

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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 eyewitness

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

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Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may swear to the

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cellmate’s ability to testify), the party himself can swear by declaration under penalty of perjury that

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the prospective witness has actual knowledge; or (2) the party can serve and file a declaration signed

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under penalty of perjury by the prospective witness in which the witness describes the relevant facts

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to which the prospective witness was an eye- or ear-witness. Whether the declaration is made by the

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party or by the prospective witness, it must be specific about the incident, when and where it

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occurred, who was present, and how the prospective witness happened to be in a position to see or

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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 issue

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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
April 1, 2013. Oppositions, if any, must be filed on or before May 6, 2013.

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2.

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 refuse

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to testify voluntarily, the party should submit with his pretrial statement a motion for the attendance

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

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

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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 party

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

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case of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00

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plus the witness’s travel expenses. 28 U.S.C. § 1821.

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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 location

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

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

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order made payable to the witness for the full amount of the witness’s travel expenses plus the daily

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witness fee of $40.00. The subpoena will not be served upon the unincarcerated witness by the

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United States Marshal unless the money order is tendered to the Court. Because no statute

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

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

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

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

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

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of the names and locations of his witnesses, in compliance with step one, as soon as possible.

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The parties are advised that failure to file pretrial statements as required by this order may

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

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of default.

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Finally, the Court shall direct the Clerk’s Office to provide the parties with consent/decline

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forms. Within thirty days from the date of service of this order, the parties shall inform the Court

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whether they consent to or decline Magistrate Judge jurisdiction by filling out the forms and

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returning them to the Court.
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Accordingly, the Court HEREBY ORDERS as follows:

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This matter is set for telephonic trial confirmation hearing before the Honorable
Anthony W. Ishii on May 28, 2013, at 3:00 p.m. in Courtroom 2;

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2.

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This matter is set for jury trial before the Honorable Anthony W. Ishii on July 9,
2013, at 8:30 a.m. in Courtroom 2;

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3.

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

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telephonic trial confirmation hearing and to initiate the telephonic hearing at (559)

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499-5669;

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4.

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Plaintiff shall serve and file a pretrial statement as described in this order on or
before April 1, 2013;

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5.

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Defendants shall serve and file a pretrial statement as described in this order on or
before May 6, 2013;

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6.

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In addition to electronically filing his 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 serve

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

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on or before April 1, 2013;

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8.

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The opposition to the motion for the attendance of incarcerated witnesses, if any,
shall be filed on or before May 6, 2013;

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9.

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

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subsection 4 of this order, to the Court on or before May 6, 2013;

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10.

The Clerk’s Office shall send the parties consent/decline forms;

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Within thirty (30) days from the date of service of this order, the parties shall notify

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the Court whether they consent to or decline Magistrate Judge jurisdiction by filling

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out the enclosed forms and returning them to the Court; and

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12.

The Clerk’s Office shall send Plaintiff a copy of Local Rule 281.

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IT IS SO ORDERED.

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Dated:
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October 1, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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