Thomas v. Stanislaus County et al

Filing 47

ORDER DENYING 42 Motion Attendance of Inmate Witness Kevin Tubbs, signed by District Judge Anthony W. Ishii on 05/08/2013. (Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DERRICK J. THOMAS, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-02015-AWI-SKO PC ORDER DENYING PLAINTIFF’S MOTION FOR THE ATTENDANCE OF INMATE WITNESS KEVIN TUBBS v. STANISLAUS COUNTY, et al., 13 (Doc. 42) Defendants. / 14 15 Plaintiff Derrick J. Thomas, a prisoner proceeding pro se and in forma pauperis, filed this 16 civil rights action pursuant to 42 U.S.C. § 1983 on November 17, 2009. On April 29, 2013, Plaintiff 17 filed a motion seeking the attendance of inmate witness Kevin Tubbs. Defendants filed an 18 opposition on May 6, 2013. 19 Pursuant to the scheduling order, the deadline to file a motion for the attendance of 20 incarcerated witnesses was April 1, 2013, and Defendants oppose the motion on the grounds that it 21 is untimely and it fails to demonstrate that Mr. Tubbs possesses firsthand knowledge of relevant 22 facts. 23 With respect to the issue of timeliness, Plaintiff was ordered to show cause why sanctions 24 should not be imposed against him for failing to comply with the scheduling order and he filed a 25 response. While Plaintiff’s excuse for failing to comply with the scheduling order was thin at best, 26 the Court declined to impose sanctions and it discharged the order to show cause. Based on that 27 determination, the Court declines to deny Plaintiff’s motion as untimely. 28 /// 1 1 With respect to the merits of the motion, Plaintiff states in his motion that Mr. Tubbs has 2 relevant, firsthand knowledge of the case and is willing to testify voluntarily, but this statement 3 merely repeats the showing Plaintiff is required to make without demonstrating that Mr. Tubbs in 4 fact saw or heard anything relevant to Plaintiff’s legal claim. As a result, there is no support for a 5 finding that Mr. Tubbs has actual knowledge of relevant facts and his presence will substantially 6 further resolution of the case. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983). 7 Accordingly, Plaintiff’s motion for the attendance of inmate witness Kevin Tubbs is 8 HEREBY DENIED. 9 10 IT IS SO ORDERED. 11 12 Dated: 0m8i78 May 8, 2013 SENIOR DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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