Butler v. Onyejie et al

Filing 79

SECOND SCHEDULING ORDER; ORDER DIRECTING Clerk's Office to Send Local Rule 281 to Plaintiff signed by Magistrate Judge Michael J. Seng on 2/17/2014. Telephonic Pretrial Conference set for 3/21/2014 at 09:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng; Jury Trial set for 4/29/2014 at 08:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Attachments: # 1 ELP Forms, # 2 ELP Forms, # 3 ELP Forms, # 4 Local Rule 281)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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DR. O. ONYEJIE, et al.,
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Defendants.
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Plaintiff Perry C. Butler (“Plaintiff”) is a
PERRY C. BUTLER,

Case No.: 1:11-cv-0723-MJS
SECOND SCHEDULING ORDER
ORDER DIRECTING CLERK’S OFFICE TO
SEND LOCAL RULE 281 TO PLAINTIFF
Telephonic Pretrial
Conference: March 21, 2014, at 9:30 a.m. in
Courtroom 6 (MJS)
Jury Trial: April 29, 2014, at 8:30 a.m. in
Courtroom 6 (MJS)

former state prisoner proceeding pro se and in

forma pauperis. Plaintiff has filed this civil rights action seeking relief pursuant to 42 U.S.C. §
1983.

Plaintiff initiated this action on April 5, 2011. (Compl., ECF No. 1.) This action

proceeds on his First Amended Complaint which alleges that Defendant Dr. O. Onyeje, a
medical doctor at Corcoran State Prison, violated Plaintiff’s Eighth Amendment rights.

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Plaintiff contends that Dr. Onyeje’s deliberate indifference to Plaintiff’s ear symptoms caused

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Plaintiff to suffer cruel and unusual punishment prohibited by the Eighth Amendment.

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Defendant Onyeje’s motion for summary judgment (ECF No. 43) has been denied

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(ECF No. 78). Accordingly, pursuant to Rule 16(b) of the Federal Rules of Civil Procedure,

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the Court will by this 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. In addition to the matters already required to be addressed in the pretrial

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

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particularized showing in order to obtain the attendance of witnesses. The procedures and

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requirements for making such a showing are outlined in detail below. Plaintiff is advised that

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failure to comply with the procedures set forth below may result in the preclusion of any and

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all witnesses named in his pretrial statement.

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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

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kinds of trial evidence:

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

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form of exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, he must

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follow certain procedures to ensure that the witnesses will be at the trial and available to

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testify.

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1.

(1) exhibits and (2) the testimony of witnesses.

It is Plaintiff’s

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

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

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is satisfied that: (a) the prospective witness is willing to attend; and (b) the prospective

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witness has actual knowledge of relevant facts.

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

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

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a written motion for a court order requiring that such witnesses be brought to court at the
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time of trial. The motion must: (1) state the name, address, and prison identification number

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of each such witness; and (2) be accompanied by declarations showing that each witness is

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willing to testify and that each witness has actual knowledge of relevant facts. The motion

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should be entitled “Motion 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

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has informed the party that he or she is willing to testify voluntarily without being

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subpoenaed, in which declaration the party must state when and where the prospective

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witness informed the party of this willingness; or (2) the party can serve and file a

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declaration, signed under penalty of perjury by the prospective witness, in which the witness

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states that he or she is willing to 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 (i.e., if an incident occurred in Plaintiff’s

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

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Plaintiff may swear to the cellmate’s ability to testify), the party himself can swear by

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declaration under penalty of perjury that the prospective witness has actual knowledge; or (2)

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the party can serve and file a declaration signed under penalty of perjury by the prospective

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witness in which the witness describes the relevant facts to which the prospective witness

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was an eye- or ear-witness.

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prospective witness, it must be specific about the incident, when and where it occurred, who

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was present, and how the prospective witness happened to be in a position to see or to hear

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what occurred at the time it occurred.

Whether the declaration is made by the party or by the

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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

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will 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 28, 2014. Oppositions, if any, must be filed on or before March 14,

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2014.
2.

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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

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the attendance of such witnesses. Such motion should be in the form described above. In

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addition, the party must indicate in the motion that the incarcerated witnesses are not willing

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to testify voluntarily.
3.

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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.
4.

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Procedures for Obtaining Attendance of Unincarcerated Witnesses Who

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

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refuses to testify voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P.

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45. In addition, the party seeking the witness’s presence must tender an appropriate sum of

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

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money is the daily witness fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. §

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1821.

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

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who 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

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

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served upon the unincarcerated witness by the United States Marshal unless the money

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order is tendered to the Court. Because no statute authorizes the use of public funds for
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these expenses in civil cases, the tendering of witness fees and travel expenses is required

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even if the party was granted leave to proceed in forma pauperis.

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If Plaintiff wishes to have the United States Marshal serve any unincarcerated

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witnesses who refuse to testify voluntarily, Plaintiff must submit a notice with the

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Court that he is requesting service by the United States Marshal and is willing to

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reimburse the United States Marshal for costs of personal service. Upon receipt of

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such notice, the Court will inform Plaintiff of the costs and require Plaintiff to submit payment

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to the Marshal prior to directing the Marshal to effect service of the subpoenas. Plaintiff

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should notify the Court of the names and locations of his witnesses as soon as possible.

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Consideration of Expedited Trial Procedures – The parties are also directed to

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review the separately attached document describing expedited litigation procedures available

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in this Court and be prepared to discuss at the telephonic trial confirmation hearing the

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suitability of any of those procedure for expediting trial in this matter.

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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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This matter is set for a telephonic trial confirmation hearing before the

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Honorable Michael J. Seng on March 21, 2014, at 9:30 a.m., in

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Courtroom 6;

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2.

April 29, 2014, at 8:30 a.m. in Courtroom 6;

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This matter is set for jury trial before the Honorable Michael J. Seng on

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Counsel for Defendant is required to arrange for the participation of

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Plaintiff in the telephonic trial confirmation hearing and to initiate the

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telephonic hearing at [phone];

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Plaintiff shall serve and file a pretrial statement as described in this order
on or before February 28, 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 14, 2014;

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6.

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

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shall serve and file a motion for attendance of incarcerated witnesses as

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described in this order on or before February 28, 2014;
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The opposition to the motion for the attendance of incarcerated
witnesses, if any, shall be filed on or before March 14, 2014;

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8.

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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses

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who refuse to testify voluntarily, Plaintiff must submit the names and

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locations of these witnesses as soon as possible as described in this

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order, and no later than February 28, 2014; and
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The Clerk’s Office shall send Plaintiff a copy of Local Rule 281.

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IT IS SO ORDERED.

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Dated:

February 17, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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