Masterson v. Killen et al
Filing
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ORDER REGARDING Plaintiff's 180 Motion for Attendance of Unincarcerated Witnesses Pursuant to the Court's Trial Scheduling Order signed by Magistrate Judge Stanley A. Boone on 2/5/2018. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DANIEL MASTERSON,
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Plaintiff,
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v.
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S. KILLEN, et al.,
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Defendants.
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Case No.: 1:11-cv-01179-SAB (PC)
ORDER REGARDING PLAINTIFF’S MOTION
FOR ATTENDANCE OF UNINCARCERATED
WITNESSES PURSUANT TO THE COURT’S
TRIAL SCHEDULING ORDER
[ECF No. 180]
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Plaintiff Daniel Masterson is appearing pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983. All parties have consented to magistrate judge jurisdiction. (ECF Nos.
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6, 164.) This matter is set for trial on May 1, 2018 at 8:30 a.m. in Courtroom 9.
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On October 13, 2017, the Court issued a Trial Scheduling Order setting forth, among other
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things, the procedures for obtaining the attendance of unincarcerated witnesses who refuse to
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voluntarily testify. (ECF No. 170.) By February 1, 2018, Plaintiff was required to notify the Court in
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writing of the name and location of each unincarcerated witnesses, and the Court would calculate the
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travel expense for each witness and notify Plaintiff of the amount. (Id. at 8-9.)
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Currently before the Court is Plaintiff’s timely written notice of the names and locations of the
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unincarcerated witnesses who refuse to voluntarily testify at trial. (ECF No. 180.) These witnesses are:
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(1) Scott Mandel; (2) Douglas Hanson; (3) Peggy Bacher; (4) Pedro Figueroa; (5) Michael Fisher; (6)
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Victoria Hernandez; (7) Randy Tolson; and (8) Mr. Clem.
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Defendants have disclosed Michael Fisher, Victoria Hernandez, and Randy Tolson as potential
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defense witnesses expected to provide percipient testimony, according to Defendants’ pretrial
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statement. (ECF No. 178 at 9). Although these witnesses have been disclosed, Defendants are not
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required to make them available at trial. The mere fact that a witness appears on an opposing party’s
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witness list is not a guarantee that the witness will be called at trial or otherwise be available for
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questioning by other parties. Therefore, Plaintiff must be prepared to tender witness fees to secure the
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attendance of these witnesses at trial, unless the parties otherwise stipulate to an agreement for their
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attendance. The parties can always agree to stipulate to the attendance of witnesses, especially if the
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defendants intend to call some of the plaintiff’s witnesses.
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The witness fees for each of the unincarcerated witnesses that Plaintiff has provided notice of
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are set forth below. The amount for each of these witnesses is based on the daily witness fee of $40.00,
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plus round-trip mileage at the current reimbursement rate of $0.545 per mile. 28 U.S.C § 1821.
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Further, the Court finds that witness Scott Mandel requires a witness fee for lodging expenses
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for one night. The address that Plaintiff has provided for Mr. Mandel is located at a distance of 194
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miles from the courthouse, and thus commuting to and from the courthouse and giving testimony in a
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single day is not feasible for that witness. 28 U.S.C. § 1821(d)(1) (“A subsistence allowance shall be
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paid to a witness when an overnight stay is required at the place of attendance because such place is so
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far removed from the residence of such witness as to prohibit return thereto from day to day.”). See
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also Ezelle v. Bauer Corp., 154 F.R.D. 149, 154 (S.D. Miss. 1994) (subsistence payment for overnight
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stay appropriate where court finds that witness’s residence is too far away from place of trial to render
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commuting feasible); Kenyon v. Automatic Instrument Co., 10 F.R.D. 248, 253 (W.D. Mich. 1950)
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(overruling objection to subsistence payment for overnight lodgings for witnesses traveling
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approximately 175 miles to place of trial). The current reimbursement rate for overnight lodging in
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Fresno, California is $103.00 per night. 28 U.S.C. § 1821(d)(2). This amount is therefore included in
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the witness fee calculated for Mr. Mandel, below.
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In sum, if Plaintiff wishes to have these witnesses served with summonses to testify at trial, then
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Plaintiff must submit a separate money order, made out to each witness, in these amounts:
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1.
For Scott Mandel, Plaintiff must submit a money order in the amount of $354.46;1
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2.
For Douglas Hanson, Plaintiff must submit a money order in the amount of $99.95;2
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3.
For Peggy Bacher, Plaintiff must submit a money order in the amount of $99.95;3
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4.
For Pedro Figueroa, Plaintiff must submit a money order in the amount of $99.95;4
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5.
For Michael Fisher, Plaintiff must submit a money order in the amount of $99.95;5
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6.
For Victoria Hernandez, Plaintiff must submit a money order in the amount of
$187.70;6
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7.
For Randy Tolson, Plaintiff must submit a money order in the amount of $98.32;7
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8.
For Mr. Clem, Plaintiff must submit a money order in the amount of $98.32.8
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Accordingly, it is HEREBY ORDERED that:
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1.
Plaintiff’s motion for the attendance of unincarcerated witnesses, filed on February 1,
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2018 (ECF No. 180) is granted, in that the Court has calculated the travel expenses for each witness on
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Plaintiff’s notice and now notifies him of the amounts that must be submitted to the Court;
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Plaintiff’s deadline to submit the above-listed money orders in the full amounts listed
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above is March 1, 2018. Plaintiff is advised that the Court cannot accept cash, and money orders
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cannot be made out to the Court. The money orders must be made out to each individual witness in
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Plaintiff reports that Scott Mandel is located at the San Quentin State Prison, in San Quentin,
California 94964. It is 388 miles, round-trip, from that location to the courthouse.
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Plaintiff reports that Douglas Hanson is located at the California Substance Abuse Treatment
Facility and State Prison, 900 Quebec Avenue, Corcoran, California 93212 (“CSATF”). It is 110
miles, round-trip, from that location to the courthouse.
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Plaintiff reports that Peggy Bacher is located at CSATF, and as noted above, it is 110 miles,
round-trip, from that location to the courthouse.
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Plaintiff reports that Pedro Figueroa is located at CSATF, and as noted above, it is 110 miles,
round-trip, from that location to the courthouse.
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Plaintiff reports that Michael Fisher is located at CSATF, and as noted above, it is 110 miles,
round-trip, from that location to the courthouse.
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Plaintiff reports that Victoria Hernandez is located at the Salinas Valley State Prison, 31625
Highway 101, Soledad, CA 93212. It is 271 miles, round-trip, from that location to the courthouse.
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Plaintiff reports that Randy Tolson is located at the California State Prison-Corcoran, 4001
King Avenue, Corcoran, California 93212 (“CSP-Cor”). It is 107 miles, round-trip, from that location
to the courthouse
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Plaintiff reports that Mr. Clem is located at CSP-Cor, and as noted above, it is 107 miles,
round-trip, from that location to the courthouse.
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that witness’s name. Upon submission of the above-listed amounts, the Court will order the United
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States Marshal to serve the unincarcerated witnesses with summonses to testify at trial.
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IT IS SO ORDERED.
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Dated:
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February 5, 2018
UNITED STATES MAGISTRATE JUDGE
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