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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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
ORDER DENYING PLAINTIFF’S MOTION
FOR THE ATTENDANCE OF INMATE
WITNESS KEVIN TUBBS

v.
STANISLAUS COUNTY, et al.,

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(Doc. 42)

Defendants.
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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. On April 29, 2013, Plaintiff

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filed a motion seeking the attendance of inmate witness Kevin Tubbs. Defendants filed an

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opposition on May 6, 2013.

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Pursuant to the scheduling order, the deadline to file a motion for the attendance of

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incarcerated witnesses was April 1, 2013, and Defendants oppose the motion on the grounds that it

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is untimely and it fails to demonstrate that Mr. Tubbs possesses firsthand knowledge of relevant

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facts.

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With respect to the issue of timeliness, Plaintiff was ordered to show cause why sanctions

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should not be imposed against him for failing to comply with the scheduling order and he filed a

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response. While Plaintiff’s excuse for failing to comply with the scheduling order was thin at best,

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the Court declined to impose sanctions and it discharged the order to show cause. Based on that

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determination, the Court declines to deny Plaintiff’s motion as untimely.

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With respect to the merits of the motion, Plaintiff states in his motion that Mr. Tubbs has

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relevant, firsthand knowledge of the case and is willing to testify voluntarily, but this statement

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merely repeats the showing Plaintiff is required to make without demonstrating that Mr. Tubbs in

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fact saw or heard anything relevant to Plaintiff’s legal claim. As a result, there is no support for a

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finding that Mr. Tubbs has actual knowledge of relevant facts and his presence will substantially

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further resolution of the case. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983).

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Accordingly, Plaintiff’s motion for the attendance of inmate witness Kevin Tubbs is

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HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:
0m8i78

May 8, 2013
SENIOR DISTRICT JUDGE

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