Thomas v. Stanislaus County et al
ORDER DENYING 42 Motion Attendance of Inmate Witness Kevin Tubbs, signed by District Judge Anthony W. Ishii on 05/08/2013. (Martin-Gill, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DERRICK J. THOMAS,
CASE NO. 1:09-cv-02015-AWI-SKO PC
ORDER DENYING PLAINTIFF’S MOTION
FOR THE ATTENDANCE OF INMATE
WITNESS KEVIN TUBBS
STANISLAUS COUNTY, et al.,
Plaintiff Derrick J. Thomas, a prisoner proceeding pro se and in forma pauperis, filed this
civil rights action pursuant to 42 U.S.C. § 1983 on November 17, 2009. On April 29, 2013, Plaintiff
filed a motion seeking the attendance of inmate witness Kevin Tubbs. Defendants filed an
opposition on May 6, 2013.
Pursuant to the scheduling order, the deadline to file a motion for the attendance of
incarcerated witnesses was April 1, 2013, and Defendants oppose the motion on the grounds that it
is untimely and it fails to demonstrate that Mr. Tubbs possesses firsthand knowledge of relevant
With respect to the issue of timeliness, Plaintiff was ordered to show cause why sanctions
should not be imposed against him for failing to comply with the scheduling order and he filed a
response. While Plaintiff’s excuse for failing to comply with the scheduling order was thin at best,
the Court declined to impose sanctions and it discharged the order to show cause. Based on that
determination, the Court declines to deny Plaintiff’s motion as untimely.
With respect to the merits of the motion, Plaintiff states in his motion that Mr. Tubbs has
relevant, firsthand knowledge of the case and is willing to testify voluntarily, but this statement
merely repeats the showing Plaintiff is required to make without demonstrating that Mr. Tubbs in
fact saw or heard anything relevant to Plaintiff’s legal claim. As a result, there is no support for a
finding that Mr. Tubbs has actual knowledge of relevant facts and his presence will substantially
further resolution of the case. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983).
Accordingly, Plaintiff’s motion for the attendance of inmate witness Kevin Tubbs is
IT IS SO ORDERED.
May 8, 2013
SENIOR DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?