Sutherland v. Yates et al
ORDER DENYING Plaintiff's Renewed Motion for Attendance of Inmate Witnesses at Trial 123 , signed by District Judge Lawrence J. O'Neill on 11/21/14. (Hellings, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CORRECTIONAL OFFICERS A.
FERNANDO AND J. JERICOFF,
ORDER DENYING PLAINTIFF=S
RENEWED MOTION FOR
ATTENDANCE OF INMATE
WITNESSES AT TRIAL
William Sutherland ("Plaintiff") is a state prisoner proceeding pro se and in forma
pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds
on the First Amended Complaint filed by Plaintiff on December 6, 2010, against defendants
Correctional Officers (C/O) A. Fernando and M. Jericoff for use of excessive force in violation
of the Eighth Amendment, and related state claims.1 (Doc. 15.) This case is scheduled for jury
trial on January 6, 2015.
On June 16, 2011, the Court dismissed defendant Lieutenant R. Lantz from this action based on
Plaintiff’s failure to state a claim against him under § 1983. (Doc. 20.) Plaintiff’s claims for conspiracy, due
process violations, and violations of the Penal Code were also dismissed from this action based on Plaintiff’s
failure to state a claim upon which relief may be granted under § 1983. (Id.) On February 20, 2014, the Court
issued an order granting in part Defendants’ motion for summary judgment of August 17, 2012, granting summary
judgment in favor of Defendant Yates. (Doc. 94.) The Court declined to exercise supplemental jurisdiction over
Plaintiff’s state law claim of negligent hiring. (Id. at 2 ¶4.)
On November 17, 2014, Plaintiff filed a renewed motion2 for the attendance of inmate
witnesses at trial. (Doc. 123.)
MOTION FOR ATTENDANCE OF INMATE WITNESSES
In the court=s Second Scheduling Order of August 26, 2014, Plaintiff was advised that
before the court will issue an order to transport an incarcerated witness to trial, Plaintiff must
file a motion stating the name, address, and prison identification number of such witness, and
submit a declaration showing that the witness is willing to testify and has actual knowledge of
relevant facts. (Doc. 101 at 3-4.) The deadline for filing the motion was September 30, 2014.
(Id. at 6 ¶8.)
Plaintiff requests the attendance at trial of several inmates. However, Plaintiff’s motion
is untimely, and he has not submitted declarations demonstrating that the witnesses are willing
to testify. In fact, Plaintiff states that “none of his inmate witnesses are willing to appear and
testify voluntarily.” (Motion, Doc. 123 at 7:26-27.) The court will not consider issuing orders
to transport Plaintiff’s inmate witnesses to trial without a motion which complies with the
requirements of the Second Scheduling Order. Therefore, Plaintiff=s motion for the attendance
of inmate witnesses shall be denied.
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s renewed motion for
attendance of inmate witnesses at trial is DENIED.
IT IS SO ORDERED.
/s/ Lawrence J. O’Neill
November 21, 2014
UNITED STATES DISTRICT JUDGE
Plaintiff titles the renewed motion “amended motion.” (Doc. 123.)
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