Forte v. County of Merced et al

Filing 156

ORDER Denying Plaintiff's Motion for Issuance of Subpoenas Duces Tecum and continuing hearing. Motion Hearing set for 7/9/13 is continued to 9/3/2013 at 01:30 PM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii.); granting in part and denying in part 145 Motion to Continue signed by District Judge Anthony W. Ishii on 7/3/13. (Nazaroff, H)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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EUGENE FORTE

)
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Plaintiff,
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v.
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COUNTY OF MERCED; DISTRICT
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ATTORNEY LARRY MORSE; DEPUTY )
DISTRICT ATTORNEY ALAN
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TURNER; COUNTY COUNSEL JAMES )
FINCHER; MERCED COUNTY
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SHERIFF MARK PAZIN; MERCED
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COUNTY SHERIFF DEPUTIES
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PACINICH, JASKOWIEAC, HILL and )
LEUCHNER; JAMES PADRON;
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SUPERVISOR JERRY O’BANION;
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CITY OF LOS BANOS; LOS BANOS
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POLICE OFFICERS GARY BRIZZEE )
and ANTHONY PARKER; CATHOLIC )
DIOCESE OF FRESNO; CONNIE
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McGHEE; McCLATCHY
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NEWSPAPERS; LOS BANOS
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ENTERPRISE; GENE LIEB; COREY
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PRIDE; and DOES 1 through 100, et al., )
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Defendants.
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____________________________________ )
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EUGENE FORTE
)
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Plaintiff,
)
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v.
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TOMMY JONES, an individual, and
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DOES 1-100, et al.,
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Defendants.
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____________________________________ )

1:11-cv-0318 AWI BAM
1:11-cv-0718 AWI BAM

ORDER DENYING
PLAINTIFF’S MOTIONS FOR
ISSUANCE OF SUBPOENAS
DUCES TECUM AND
CONTINUING HEARING
SCHEDULED FOR JULY 9,
2013, TO SEPTEMBER 3, 2013

Addresses:
Doc. # 86 (in Case # 11cv0718)
Doc. # 145 (in Case # 11cv0318)

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On May 29, 2013, the court set a hearing for July 9, 2013, to address concerns

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regarding the ability or willingness of Plaintiff to proceed in pro per in actions in cases

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11cv0318 and 11cv0718. On June 24, 2013, Plaintiff filed motions to continue the July 9

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hearing and to be provided with a number of subpoenas duces tecum. Based on the list of

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individuals to whom the subpoenas are proposed to be issued, Plaintiff’s apparent purpose is

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to produce testimony from individuals who were either significant participants in the

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misdemeanor criminal proceedings in Merced Superior Court that ended with dismissal of

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charges based on the finding of Plaintiff’s mental incompetency; or who are friends, family or

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individuals who will testify in support of Plaintiff’s mental competence.

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The court will deny Plaintiff’s requests for the issuance of subpoenas duces tecum.

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The reasons are largely a repetition of statements that have been made previously, either

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explicitly or by implication, regarding the court’s purpose and standards for the determination

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of the issue of Plaintiff’s ability to proceed in pro per. Briefly, the testimony of the proposed

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witnesses sought by Plaintiff will not be allowed because their testimony is not, at present,

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relevant to the court’s determination. It is not relevant, for purposes of determining

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Plaintiff’s competency, if the proceedings that produced the finding of incompetency in the

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Superior Court were fair, unfair, prejudiced, based upon insufficient or inaccurate evidence,

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or whether they produced an objectively accurate or inaccurate determination. It is also not

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relevant whether Plaintiff suffers from a delusional disorder or whether the conspiracy or

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conspiracies he refers to is/are actual. It is not relevant whether Plaintiff agrees or does not

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agree with some, all or none of this court’s prior determinations or the prior decisions of any

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other court. Also, and perhaps most importantly, the court is not concerned primarily with

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the ability of Plaintiff to act as a witness in his own proceedings. The concern of both the

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individual who is proceeding in pro per and the court is primarily with the ability of the

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individual acting as his own attorney to elicit testimony from others in a manner that

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comports with the rules of due process, the requirements of order and decorum, and the

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court’s determination of what is and is not relevant.

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The court will make its determination of Plaintiff’s ability to continue in pro per
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primarily by being in conversation with Plaintiff and with oppositions’ counsels. To the

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extent Plaintiff is concerned that the court may rule adversely to him based upon any

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continuing use of invective or any evident disrespect of either the court or the opposing

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counsel at any future hearing or in any future pleading, Plaintiff’s concern is well-founded,

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but only to the extent that such matters are relevant to any rulings by the court. To the extent

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Plaintiff is concerned with “making a record,” Plaintiff is counseled that a simple statement

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of objection will suffice for that purpose.

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While the court will deny Plaintiff’s request for issuance of subpoenas duces tecum,

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the court finds that the hearing that was originally scheduled for July 9, 2013, is in conflict

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with a criminal trial due to commence the same day. Unfortunately, a series of subsequent

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trials requires that the court continue the hearing on Plaintiff’s ability to proceed in pro per

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until Tuesday, September 3, 2013, at 1:30 p.m. The court will notify the parties should any

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earlier date become available.

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THEREFORE, for the reasons discussed above it is hereby ORDERED that Plaintiff’s

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motions for issuance of subpoenas duces tecum in Cases 11cv0318 and 11cv0718 are each

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hereby DENIED. The hearing currently scheduled to be held on July 9, 2013 is hereby

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CONTINUED to Tuesday, September 3, 2013, at 1:30 p.m. in Courtroom 2.

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IT IS SO ORDERED.

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Dated:
0m8i78

July 3, 2013
SENIOR DISTRICT JUDGE

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