Bryant v. Gallagher et al

Filing 293

ORDER RECALLING Service of Subpoenas on Witnesses by the United States Marshall signed by Magistrate Judge Barbara A. McAuliffe on 10/13/2016. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 KEVIN DARNELL BRYANT, 10 Plaintiff, 11 12 v. GALLAGHER, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) Case No. 1:11-cv-00446-BAM (PC) ORDER RECALLING SERVICE OF SUBPOENAS ON WITNESSES BY THE UNITED STATES MARSHALL (ECF No. 270) 15 Plaintiff Kevin Darnell Bryant (“Plaintiff”) is state prisoner proceeding in forma pauperis in 16 17 this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s claims against 18 Defendant Romero for deliberate indifference to serious medical needs in violation of the Eighth 19 Amendment, and against Defendants Gallagher and Romero for conspiracy, retaliation in violation of 20 the First Amendment, and failure to protect in violation of the Eighth Amendment. All parties have 21 consented to magistrate judge jurisdiction. (ECF Nos. 7, 231.) 22 On September 21, 2016, the Court directed the United States Marshal to serve certain 23 witnesses with a subpoena for their appearances at trial on October 18, 2016, along with the witness 24 fees submitted by Plaintiff. (ECF No. 270.) On October 5, 2016, the Court issued an order recalling 25 the portion of its September 21, 2016 order directing service of a subpoena on B. DaVeiga. (ECF No. 26 284.) The United States Marshal complied with that order, and a separate order shall issue regarding 27 the return of the witness fees for B. DaVeiga to Plaintiff’s counsel. 28 /// 1 1 Subsequently, a hearing was held on October 12, 2016 regarding Plaintiff’s motion to continue 2 the trial date in this matter. The motion was granted, and consequently, Plaintiff’s unincarcerated 3 witnesses are not required to appear to testify on October 18, 2016. 4 Based on the foregoing, the Court finds it appropriate to recall its September 21, 2016 order 5 directing service of subpoena on the witnesses. To the extent those witnesses have not yet been served, 6 service is no longer necessary, and the witness fees should be returned to Plaintiff’s counsel. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. 9 The September 21, 2016 order directing the United States Marshal to serve subpoenas and witness fees on Plaintiff’s unincarcerated witnesses (ECF No. 270), is recalled; 10 2. 11 Marshal; 12 3. The Clerk of the Court is directed to forward a copy of this order to the United States Any witness fees still within the possession of the United States Marshals Service shall 13 be sent to the United States District Court, Eastern District of California within ten (10) days 14 following receipt of this order; and 15 16 4. Upon receipt of the money order(s), the Court shall direct their return to Plaintiff’s counsel. 17 18 19 20 IT IS SO ORDERED. Dated: /s/ Barbara October 13, 2016 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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