Aubert v. Hector

Filing 47

AMENDED SECOND SCHEDULING ORDER signed by Magistrate Judge Gary S. Austin on 02/10/2014. Telephonic Trial Confirmation Hearing set for 4/3/2014 at 10:00 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng; Jury Trial set for 5/28/2014 at 08:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESS’NN A. AUBERT,

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Plaintiff,

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1:10-cv-00565-MJS-PC
AMENDED SECOND SCHEDULING
ORDER
(Doc. 43.)

vs.
C/O HECTOR ROBLES,

Telephonic Trial Confirmation
Hearing:
April 3, 2014, at 10:00 a.m. in
Courtroom 6 (MJS)

Defendant.

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Jury Trial:

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May 28, 2014, at 8:30 a.m. in
Courtroom 6 (MJS)

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Plaintiff Ess’nn A. Aubert, a state prisoner proceeding pro se and in forma pauperis,

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filed this civil rights action pursuant to 42 U.S.C. ' 1983 on April 1, 2010. This action for

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damages is proceeding against defendant Correctional Officer Hector Robles (“Defendant”),

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for use of excessive force against Plaintiff, in violation of the Eighth Amendment of the United

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States Constitution. The parties have consented to Magistrate Judge jurisdiction and, in an

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order filed concurrently with this order, this case was reassigned to United States Magistrate

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Judge Michael J. Seng for all purposes within the meaning of 28 U.S.C. ' 636(c), to conduct

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any and all further proceedings in the case, including trial and entry of final judgment. (Docs.

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16, 45.) Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the Court will, by this

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order, set a further schedule for this litigation.
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The parties are required to file pretrial statements in accordance with the schedule set

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forth herein.

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statement in accordance with Local Rule 281, Plaintiff will be required to make a particularized

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showing in order to obtain the attendance of witnesses.1 The procedures and requirements for

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making such a showing are outlined in detail below. Plaintiff is advised that failure to comply

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with the procedures set forth below may result in the preclusion of any and all witnesses named

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in his pretrial statement.2

In addition to the matters already required to be addressed in the pretrial

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At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each

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of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds

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of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff=s responsibility

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to produce all of the evidence to prove his case, whether that evidence is in the form of exhibits

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or witness testimony. If Plaintiff wants to call witnesses to testify, he must follow certain

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procedures to ensure that the witnesses will be at the trial and available to testify.

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1.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to

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Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give

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testimony cannot come to court unless the Court orders the warden or other custodian to permit

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the witness to be transported to court. The Court will not issue such an order unless it is

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satisfied that the prospective witness has actual knowledge of relevant facts.

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A party intending to introduce the testimony of incarcerated witnesses who have agreed

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voluntarily to attend the trial must serve and file concurrent with the pretrial statement a written

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motion for a court order requiring that such witnesses be brought to court at the time of trial.

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The motion must: (1) state the name, address, and prison identification number of each such

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witness; and (2) be accompanied by declarations showing that each witness is willing to testify

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The Clerk of Court mailed Plaintiff a copy of Local Rule 281 on January 28, 2014. (Doc. 43-1.)

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Notwithstanding the requirements set forth herein, it is within the Court=s discretion to grant a motion
for the attendance of incarcerated witnesses if the moving party has shown the witnesses have relevant information
and the Court determines the witnesses= presence will substantially further the resolution of the case. Wiggins v.
County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983).
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and that each witness has actual knowledge of relevant facts. The motion should be entitled

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AMotion for Attendance of Incarcerated Witnesses.@

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The willingness of the prospective witness can be shown in one of two ways: (1) the

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party himself can swear by declaration under penalty of perjury that the prospective witness has

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informed the party that he or she is willing to testify voluntarily without being subpoenaed, in

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which declaration the party must state when and where the prospective witness informed the

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party of this willingness; or (2) the party can serve and file a declaration, signed under penalty

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of perjury by the prospective witness, in which the witness states that he or she is willing to

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testify without being subpoenaed.

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The prospective witness=s actual knowledge of relevant facts can be shown in one of

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two ways: (1) if the party has actual firsthand knowledge that the prospective witness was an

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eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff=s cell

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and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff

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may swear to the cellmate=s ability to testify), the party himself can swear by declaration under

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penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve

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and file a declaration signed under penalty of perjury by the prospective witness in which the

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witness describes the relevant facts to which the prospective witness was an eye or ear-witness.

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Whether the declaration is made by the party or by the prospective witness, it must be specific

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about the incident, when and where it occurred, who was present, and how the prospective

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witness happened to be in a position to see or to hear what occurred at the time it occurred.

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The Court will review and rule on the motion for attendance of incarcerated witnesses,

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specifying which prospective witnesses must be brought to court. Subsequently, the Court will

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issue the order necessary to cause the witness=s custodian to bring the witness to court.

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Motions for the attendance of incarcerated witnesses, if any, must be filed on or

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before February 25, 2014. Oppositions, if any, must be filed on or before March 25, 2014.

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2.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who

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refuse to testify voluntarily, the party should submit with his pretrial statement a motion for the
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attendance of such witnesses. Such motion should be in the form described above. In addition,

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the party must indicate in the motion that the incarcerated witnesses are not willing to testify

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voluntarily.

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3.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree

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to Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated

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witness=s voluntary attendance to notify the witness of the time and date of trial. No action

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need be sought or obtained from the Court.

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4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse

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to Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to

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testify voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition,

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the party seeking the witness=s presence must tender an appropriate sum of money for the

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witness. Id. In the case of an unincarcerated witness, the appropriate sum of money is the

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daily witness fee of $40.00 plus the witness=s travel expenses. 28 U.S.C. ' 1821.

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If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and

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location of each unincarcerated witness. The Court will calculate the travel expense for each

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unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each

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witness, submit a money order made payable to the witness for the full amount of the witness=s

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travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the

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unincarcerated witness by the United States Marshal unless the money order is tendered to the

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Court. Because no statute authorizes the use of public funds for these expenses in civil cases,

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the tendering of witness fees and travel expenses is required even if the party was granted leave

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to proceed in forma pauperis.

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If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must submit the money orders to the Court no later

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than March 25, 2014. In order to ensure timely submission of the money orders, Plaintiff

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must notify the Court of the names and locations of his witnesses, in compliance with step

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one, on or before February 25, 2014.
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The parties are advised that failure to file pretrial statements as required by this order

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may result in the imposition of appropriate sanctions, which may include dismissal of the

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action or entry of default.

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Accordingly, the Court HEREBY ORDERS as follows:

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1.

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This matter is set for telephonic trial confirmation hearing before the Honorable
Michael J. Seng on April 3, 2014, at 10:00 a.m. in Courtroom 6;

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2.

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This matter is set for jury trial before the Honorable Michael J. Seng on May 28,
2014, at 8:30 a.m. in Courtroom 6;

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3.

Counsel for Defendant is required to arrange for the participation of Plaintiff in

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the telephonic trial confirmation hearing and to initiate the telephonic hearing at

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1-888-204-5984, code 4446176.

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4.

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Plaintiff shall serve and file a pretrial statement as described in this order on or
before February 25, 2014;

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5.

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Defendant shall serve and file a pretrial statement as described in this order on
or before March 25, 2014;

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6.

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In addition to electronically filing his pretrial statement, Defendant shall e-mail
the pretrial statement to: [e-mail];

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7.

If Plaintiff intends to call incarcerated witnesses at time of trial, Plaintiff shall

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serve and file a motion for attendance of incarcerated witnesses as described in

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this order on or before February 25, 2014;

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8.

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The opposition to the motion for the attendance of incarcerated witnesses, if any,
shall be filed on or before March 25, 2014;

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9.

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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who
refuse to testify voluntarily, Plaintiff must notify the Court of their names and

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locations on or before February 25, 2014, and Plaintiff must submit the money

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orders, as described in subsection 4 of this order, to the Court on or before

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March 25, 2014.

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IT IS SO ORDERED.
Dated:

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February 10, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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