Kitchens v. Tardsen et al

Filing 92

ORDER REGARDING Plaintiff's 90 Motion to Subpoena Unincarcerated Witnesses, signed by Magistrate Judge Michael J. Seng on 7/27/15. Deadline for Submission of Statutory Fees: August 31, 2015.(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LANARD KITCHENS,

CASE NO. 1:12-cv-0105-AWI-MJS (PC)

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Plaintiff,

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v.

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TORDSEN, et al.,
Defendants.

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ORDER REGARDING PLAINTIFF’S
MOTION TO SUBPOENA
UNINCARCERATED WITNESSES
(ECF No. 90)
AUGUST 31, 2015 DEADLINE FOR
SUBMISSION OF STATUTORY FEES

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 10.) This matter

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proceeds against Defendant Tordsen on Plaintiff’s First Amendment retaliation claim,

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and against Defendants Tordsen, Coker, Leach and Day on Plaintiff’s Fourteenth

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Amendment claim for subjecting Plaintiff to conditions of confinement that amounted to

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punishment. (ECF No. 28.) Trial is set for October 27, 2015. (ECF No. 85.)

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I.

REQUEST TO SUBPOENA UNINCARCERATED WITNESSES

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Plaintiff seeks to subpoena the following staff of California Forensic Medical

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Group (CFMG) at the Kings County Jail to testify at trial on October 27, 2015: Minetta

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Costa, Medical Program Manager; Nurses Maryanne Tordsen, Shannon Irish, Frank

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and Ononaba; Psychiatric Nurse Linda V.; and Doctors Ewing and Wilson. (ECF No.

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90.) Plaintiff asserts that he will call each witness for the purpose of authenticating

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medical records which he or she has authored or signed.

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The Court’s May 29, 2015 scheduling order advised Plaintiff of the procedures

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for subpoenaing unincarcerated witnesses for trial. (ECF No. 85.) Plaintiff was advised

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to notify the Court in writing of the names and location of such witnesses by July 27,

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2015. He has done so.

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Accordingly, the Court will advise Plaintiff of the travel expenses for each

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witness so that Plaintiff may meet his obligation of submitting, not later than August 31,

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2015, a money order to cover the travel expenses for each witness. Without the money

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orders, no subpoena will issue and no witness will be served by the United States

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Marshal.

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Plaintiff lists the location of these witnesses as California Forensic Medical

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Group, Kings County Jail, 1570 Kings County Drive, Hanford, CA 93230. The Court

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takes judicial notice that this is the physical location of the Kings County Jail. It is not

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clear that this address is appropriate for service or mileage costs for employees of

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CFMG, which contracts with the jail.

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If the witnesses are to travel from the Kings County Jail to the United States

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District Court in Fresno, California,1 the round trip mileage is 68 miles. The mileage

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rate is 57.5 cents per mile. Accordingly, the total mileage fee for each of these

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witnesses is $39.10. Each also is entitled to a $40.00 daily witness fee. Therefore,

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Plaintiff must submit a money order in the amount of $79.10 payable to each of these

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individuals he wants subpoenaed to trial.

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The deadline for submitting money orders to subpoena witnesses is August 31,

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2015. The Court will take and keep Plaintiff’s motion for the attendance of these

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witnesses under submission pending receipt of the money orders.

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If the witnesses are in fact required to travel from some other, more distant, location, the travel expense
calculated here will be inadequate and not in compliance with this Court’s Orders.

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Plaintiff’s efforts to subpoena these witnesses may be misguided. Often, a

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facility’s records custodian may authenticate all medical records from that facility. More

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often, the parties will stipulate to the authenticity of medical records. Either alternative

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would obviate the need to subpoena seven individuals and pay their witness fees.

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II.

CONCLUSION AND ORDER

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Plaintiff’s motion for the attendance of unincarcerated witnesses (ECF No. 90) is

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taken under submission pending receipt of money orders covering the statutorily

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mandated witness fees.

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IT IS SO ORDERED.
Dated:

July 27, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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