Bryant v. Gallagher et al

Filing 330

ORDER GRANTING 326 Defendants' Ex Parte Motion for Reconsideration signed by Magistrate Judge Barbara A. McAuliffe on 4/27/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DARNELL BRYANT, 12 13 14 Plaintiff, Case No. 11-cv-00446-BAM (PC) ORDER GRANTING DEFENDANTS’ EX PARTE MOTION FOR RECONSIDERATION v. (ECF No. 326) GALLAGHER, et al., 15 Defendants. 16 17 Plaintiff Kevin Darnell Bryant (“Plaintiff”) is a state prisoner proceeding in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds against 19 Defendants Gallagher and Romero for conspiracy, retaliation in violation of the First 20 Amendment, and failure to protect in violation of the Eighth Amendment; and against Defendant 21 A. Romero for deliberate indifference to serious medical needs in violation of the Eighth 22 Amendment. 23 On April 14, 2017, Plaintiff filed a request for clarification regarding witnesses. Plaintiff 24 sought clarification regarding: (1) the issuance of writs of habeas corpus ad testifcandum for 25 Inmates Levels, Contreras, and Vargas; (2) whether Plaintiff was required to seek a subpoena 26 with respect to Dr. Vladimir Skorokhod’s appearance at trial; and (3) whether Plaintiff could 27 issue subpoenas through counsel, and forego service by the U.S. Marshal. (ECF No. 318.) With 28 respect to Dr. Skorokhod, the Court’s order of April 17, 2017 clarified that, pursuant to the 1 1 Court’s general practice in such cases, witnesses the defense plans to call shall be present for trial 2 and shall be available for Plaintiff to call for direct examination. Therefore, Plaintiff was not 3 required to seek a subpoena with respect to Dr. Skorokhod’s appearance at trial. (ECF No. 319.) 4 On April 19, 2017, Defendants Gallagher and Romero (“Defendants”) filed the instant ex 5 parte motion for reconsideration regarding Dr. Skorokhod’s appearance at trial. (ECF No. 326.) As noted by Defendants, Plaintiff’s request for clarification did not identify Dr. 6 7 Skorokhod as a nonparty witness who is not employed by or contracted to work for the California 8 Department of Corrections and Rehabilitation. (ECF No. 326, p. 3.) As such, Defendants have 9 no greater ability to produce Dr. Skorokhod’s appearance at trial than Plaintiff. In addition, 10 Defendants correctly assert that although Dr. Skorokhod is listed as a potential defense witness in 11 the Pretrial Order, they are not required to call him at trial. Defendants are not required to make 12 Dr. Skorokhod available at trial if they do not intend to call him as a witness. Therefore, if 13 Plaintiff seeks to elicit testimony from Dr. Skorokhod, Plaintiff is required to make the necessary 14 arrangements to ensure Dr. Skorokhod’s appearance at trial.1 Accordingly, Defendants’ ex parte motion for reconsideration concerning Dr. 15 16 17 18 Skorokhod’s appearance at trial is HEREBY GRANTED. Fed. R. Civ. P. 60(a); Local Rule 230(j)(3). Defendants are not required to make Dr. Skorokhod available at trial if they do not intend to call him as a witness. 19 IT IS SO ORDERED. 20 21 /s/ Barbara Dated: April 27, 2017 A. McAuliffe UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 The Court notes that Dr. Skorokhod is not listed as a potential witness for Plaintiff in the Pretrial Order. (ECF No. 258, pp. 12–13.) Plaintiff is reminded that pursuant to the Pretrial Order, “NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT ‘MANIFEST INJUSTICE.’ Fed. R. Civ. P. 16(e); Local Rules 281(b)(10).” (Id., p. 12.) 2

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