Sutherland v. Yates et al

Filing 125

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM SUTHERLAND, 12 Plaintiff, 13 14 15 vs. CORRECTIONAL OFFICERS A. FERNANDO AND J. JERICOFF, ORDER DENYING PLAINTIFF=S RENEWED MOTION FOR ATTENDANCE OF INMATE WITNESSES AT TRIAL (Doc. 123.) Defendants. 16 17 1:09-cv-02152-LJO-GSA-PC I. BACKGROUND 18 William Sutherland ("Plaintiff") is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds 20 on the First Amended Complaint filed by Plaintiff on December 6, 2010, against defendants 21 Correctional Officers (C/O) A. Fernando and M. Jericoff for use of excessive force in violation 22 of the Eighth Amendment, and related state claims.1 (Doc. 15.) This case is scheduled for jury 23 trial on January 6, 2015. 24 25 26 27 28 1 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.) 1 On November 17, 2014, Plaintiff filed a renewed motion2 for the attendance of inmate 1 2 witnesses at trial. (Doc. 123.) 3 II. MOTION FOR ATTENDANCE OF INMATE WITNESSES 4 In the court=s Second Scheduling Order of August 26, 2014, Plaintiff was advised that 5 before the court will issue an order to transport an incarcerated witness to trial, Plaintiff must 6 file a motion stating the name, address, and prison identification number of such witness, and 7 submit a declaration showing that the witness is willing to testify and has actual knowledge of 8 relevant facts. (Doc. 101 at 3-4.) The deadline for filing the motion was September 30, 2014. 9 (Id. at 6 ¶8.) 10 Plaintiff requests the attendance at trial of several inmates. However, Plaintiff’s motion 11 is untimely, and he has not submitted declarations demonstrating that the witnesses are willing 12 to testify. In fact, Plaintiff states that “none of his inmate witnesses are willing to appear and 13 testify voluntarily.” (Motion, Doc. 123 at 7:26-27.) The court will not consider issuing orders 14 to transport Plaintiff’s inmate witnesses to trial without a motion which complies with the 15 requirements of the Second Scheduling Order. Therefore, Plaintiff=s motion for the attendance 16 of inmate witnesses shall be denied. 17 III. 18 19 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s renewed motion for attendance of inmate witnesses at trial is DENIED. 20 21 22 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill November 21, 2014 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2 Plaintiff titles the renewed motion “amended motion.” (Doc. 123.) 2

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