Ford v. Wildey et al

Filing 158

ORDER Regarding Plaintiff's Motions to Add Witnesses to Be Present at Trial on February 9, 2016 155 , 156 , signed by Magistrate Judge Stanley A. Boone on 1/5/16: Motions are DENIED. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENNY FORD,

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Plaintiff,

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v.
G. WILDEY, et al.,

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Defendants.

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Case No.: 1:10-cv-01024-SAB (PC)
ORDER REGARDING PLAINTIFF’S MOTIONS
TO ADD WITNESSES TO BE PRESENT AT
TRIAL ON FEBRUARY 9, 2016
[ECF Nos. 155, 156]

Plaintiff Benny Ford is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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This action is proceeding against Defendants Wildey and Marshall for excessive force in
violation of the Eighth Amendment, and the case is set for jury trial on February 9, 2016.

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On December 28, 2015, and December 30, 2015, Plaintiff filed motions to add witnesses to his

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witness list to be present at trial on February 9, 2016. (ECF Nos. 155, 156.) Plaintiff seeks to add

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Defendant Gary Wildey, Defendant Robert Marshall, Lou Bonifasio (Licensed Vocational Nurse), Dr.

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Galen Church (Chief Physician Surgeon), and G.A. Magallanes (Correctional Lieutenant), as

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witnesses to be present at trial on February 9, 2016.

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I.

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DISCUSSION

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A.

Defendants Wildey and Marshall

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As directed in the Court’s December 18, 2015, pretrial order, Defendants Wildey and Marshall

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were directed to appear in person at trial to potentially be called as witnesses in Plaintiff’s case in

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chief. (ECF No. 152, Order at 14:4-5.) Accordingly, no further order by the Court is necessary and

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Plaintiff may call Defendants Wildey and Marshall as witnesses in his case in chief.

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B.

Lou Bonifasio and Dr. Galen Church

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Plaintiff seeks to add Loui Bonifasio and Dr. Galen Church to his list of witnesses to be

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presented at trial. Plaintiff submits that he opposes testimony by Dr. Church as an expert witness but

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argues “if the court rules in the Defendants favor Plaintiff request the opportunity to cross examine

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and to conduct direct questioning of Dr. G. Church if the Defendants’ counsel puts this individual on

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the witness stand.” (ECF No. 155, Mot. at 2.)

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The Court’s August 28, 2015, trial scheduling order specifically advised Plaintiff of the

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procedures for obtaining the attendance of incarcerated and unincarcerated witnesses who were willing

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and unwilling to testify at trial. (ECF No. 136, Order at 5:18-8:23.) There is no evidence that Plaintiff

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complied with the proper procedures for securing the attendance of either Lou Bonifasio or Dr. Galen

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Church to testify at trial on February 9, 2016. Accordingly, Plaintiff’s motion must be DENIED.

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However, Plaintiff is advised if Defendants called Lou Bonifasio and/or Dr. Galen Church to present

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testimony at trial Plaintiff will be afforded the opportunity to cross-examine such witnesses.

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C.

G.A. Magallanes

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Plaintiff requests that the court issue an order for the personal attendance of G.A. Magallanes

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(Correctional Lieutenant) at trial on February 9, 2016, to testify “to the fact finding hearing/inquiry

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that he personally conducted concerning this case.” (ECF No. 156, Mot. at 3.) Plaintiff submits that

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Lieutenant Magallanes was the assigned reviewer for the Plaintiff’s inmate appeal/staff complaint that

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was filed at the California Correctional Institution on July 17, 2009, against Defendants Wildey and

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Marshall. Magallanes conducted the fact finding confidential inquiry on August 21, 2009. (Id. at 2,

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Ex. 1.)
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As previously stated, the Court’s August 28, 2015, trial scheduling order advised Plaintiff of

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the procedural requirements for obtaining the attendance of unincarcerated witnesses who were

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unwilling to testify at trial, which requires submission of a money order for travel and witness fees.

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(ECF No. 136, Order at 8:4-23.) Plaintiff did not comply with such requirements and he cannot now

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seek a court order for the attendance of Lieutenant Magallanes as a witness at trial on February 9,

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2016. Accordingly, Plaintiff’s motion must be DENIED.

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II.

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ORDER
Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motion to amend his witness list to include Defendants Wildey and Marshall
is DENIED as unnecessary; and

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2.

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Plaintiff’s motion to amend his witness list to include Lou Bonifasio and Dr. Galen
Church is DENIED; and

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3.

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Plaintiff’s motion for a court order for the personal appearance of Lieutenant
Magallanes is DENIED.

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IT IS SO ORDERED.

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Dated:

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January 5, 2016
UNITED STATES MAGISTRATE JUDGE

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