Edwards v. Cabral et al

Filing 84

AMENDED SECOND SCHEDULING ORDER signed by Magistrate Judge Michael J. Seng on 10/14/2015. Trial Confirmation Hearing set for 2/18/2016 at 01:30 PM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. Jury Trial set for 5/10/2016 at 08:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN R. EDWARDS,

Case No. 1:13-cv-00345-MJS (PC)

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Plaintiff,

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AMENDED
ORDER

SECOND

SCHEDULING

v.
D. CABRAL, et al.,
Defendants.

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Telephonic Trial Confirmation
Hearing:
February 18, 2016 at 1:30
p.m. in Courtroom 6 (MJS)
Jury Trial:

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May 10, 2016 at 8:30
a.m. in Courtroom 6 (MJS)

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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 28 U.S.C. § 1983. The parties have consented to
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Magistrate Judge jurisdiction. (ECF Nos. 77 & 82.) Therefore, the Court will amend the
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deadlines set in the Second Scheduling Order as follows.
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The parties are required to file pretrial statements in accordance with the
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schedule set forth below. The pretrial statements must comply with the provisions of
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Local Rule 281. In addition, Plaintiff must make a particularized showing to obtain the
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attendance of witnesses. The procedures and requirements for doing so are outlined in
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detail below.
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Failure to comply with the provisions of this Order may result in the
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imposition of sanctions which could include dismissal of the action or entry of
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default.

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A. Special Procedures for Plaintiff’s Witnesses

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At the trial of this case, Plaintiff must be prepared to introduce evidence to prove
each of the alleged facts that support claims made in the lawsuit. In general, there are
two kinds of trial evidence: (1) exhibits and (2) testimony of witnesses. It is Plaintiff’s
responsibility to produce all of the evidence to prove his case, whether that evidence is
in the form of exhibits or testimony from witnesses. If Plaintiff wants to call witnesses to
testify, he must comply with the following procedures to ensure that the witnesses will
appear at trial and be available to testify.1 Failure to comply with the procedures set
forth below may result in the Court precluding testimony from Plaintiff’s witnesses.

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1.

Agree to Testify Voluntarily

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An incarcerated witness who agrees to come to court and testify at trial can only
do so if the Court orders the warden or other custodian to allow him or her to be
transported to court. The Court will not issue such an order unless it is satisfied that: (a)
the prospective witness is willing to attend; and (b) he or she has actual knowledge of
relevant facts.

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If Plaintiff wants to call such witnesses, Plaintiff must serve and file with the
pretrial statement a written motion for a court order directing that the witnesses be
brought to trial. The motion must: (1) state the name, address, and prison identification
number of each such witness; and (2) include declarations showing that each witness is
willing to testify and that each witness has actual knowledge of relevant facts. The
motion should be entitled “Motion for Attendance of Incarcerated Witnesses.”

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Procedures for Obtaining Attendance of Incarcerated Witnesses Who

The willingness of the prospective witness to come and testify can be shown in
one of two ways: (a) the Plaintiff can swear under penalty of perjury that the prospective

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Notwithstanding the requirements set forth herein, it is within the Court’s discretion to grant a motion

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information and the Court determines the witnesses’ presence will substantially further the resolution of

28 the case. Wiggins v. Cnty. of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983).
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witness has informed him that he or she is willing to testify voluntarily without being
subpoenaed; if so, the declaration must state when and where the witness so advised
the Plaintiff; or (b) Plaintiff can serve and file a declaration, signed under penalty of
perjury by the prospective witness, in which the witness states he or she is willing to
testify without being subpoenaed.
The prospective witness’s actual knowledge of relevant facts also can be shown
in one of two ways: (a) if Plaintiff has actual firsthand knowledge that the prospective
witness was an eyewitness or an ear-witness to the relevant facts (for example, if the
incident occurred in Plaintiff’s cell and Plaintiff saw that a cellmate was present at the
time and observed the incident), Plaintiff can swear by declaration under penalty of
perjury that the prospective witness has actual knowledge; or (b) Plaintiff can serve and
file a declaration signed under penalty of perjury by the prospective witness in which the
witness describes the relevant facts to which he or she was an eye- or ear-witness.
Whether the declaration is made by the Plaintiff or by the prospective witness, it
must be specific about the incident, when and where it occurred, who was present, and
how the prospective witness happened to be in a position to see or hear what occurred.
The Court has discretion to grant a motion for the attendance of incarcerated
witnesses if the moving party shows that the witnesses have relevant information and
the Court finds that the witnesses’ presence will substantially further the resolution of
the case. Wiggins, 717 F.2d at 468 n.1. The Court will review and rule on the motion
for attendance of incarcerated witnesses, specifying which will be brought to court.
Subsequently, the Court will order the witness’s custodian to bring the witness to court.
Motions for the attendance of incarcerated witnesses, if any, must be filed
on or before January 7, 2016. Oppositions, if any, must be filed on or before
January 21, 2016.

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2.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who

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Refuse to Testify Voluntarily
If Plaintiff seeks to obtain the attendance of incarcerated witnesses who refuse
to testify voluntarily, Plaintiff should submit with his or her pretrial statement a motion for
the attendance of such witnesses. Such motion should be in the form, and contain the
same information, called for above and show that the witnesses have relevant
information. In addition, Plaintiff must indicate that the incarcerated witnesses are not
willing to testify voluntarily.
3.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who

Agree to Testify Voluntarily
Plaintiff does not need Court permission or a Court Order to have unincarcerated
witnesses appear and testify if the witnesses are willing to do so voluntarily (and Plaintiff
has properly identified the witnesses in his Pretrial Statement). It is Plaintiff’s sole
responsibility to notify the witness of the time and date of trial and arrange for his
presence. The Court need not be involved.
4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who

Refuse to Testify Voluntarily
If a prospective witness is not incarcerated, and he or she refuses to testify
voluntarily, the witness must be served with a subpoena.

Fed. R. Civ. P. 45.

In

addition, the party seeking the witness’s presence must deposit fees for the witness in
advance of subpoenaing the witness. Id. In the case of an unincarcerated witness, the
fee that must be deposited is the daily witness fee of $40.00 plus the witness’s travel
expenses. 28 U.S.C. § 1821.
If Plaintiff wishes to obtain the attendance of one or more unincarcerated
witnesses who refuse to testify voluntarily, Plaintiff must first notify the Court in writing of
the name and location of each unincarcerated witness. Plaintiff is to notify the Court
of the names and locations of such witnesses on or before January 7, 2016.
The Court will calculate the travel expense for each such witness and notify

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Plaintiff of the amount(s) to be deposited for each. Plaintiff must then, for each witness,
submit a money order made payable to the witness for the full amount of the witness’s
travel expenses plus the daily witness fee of $40.00. The subpoena will not be served
on the unincarcerated witness by the United States Marshal unless the money order is
tendered to the Court. There is no legal basis for using public funds to cover such
expenses in civil cases even for parties proceeding in forma pauperis.
If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who
refuse to testify voluntarily, Plaintiff must submit the money orders to the Court on
or before January 21, 2016.
B. Scheduling Order
With regard to the further litigation and trial of this matter, the Court specifically
ORDERS as follows:
1.

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Honorable Michael J. Seng, U.S. Magistrate Judge, on February 18,

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2016, at 1:30 p.m. in Courtroom 6;
2.

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Conference Call: [phone], Access Code: 4446176;
3.

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4.

5.

Plaintiff shall serve and file a pretrial statement as described in this Order
on or before January 7, 2016;

6.

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This matter is set for trial before the Honorable Michael J. Seng, U.S.
Magistrate Judge, on May 10, 2016, at 8:30 a.m. in Courtroom 6;

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Counsel for Defendants is required to arrange for the participation of
Plaintiff in the telephonic scheduling conference;

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The parties may participate in the trial confirmation hearing telephonically
by dialing the following conference call number and access code.

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This matter is set for telephonic trial confirmation hearing before the

Defendants shall serve and file a pretrial statement as described in this
Order on or before January 21, 2016;

7.

In addition to electronically filing their pretrial statement, Defendants shall

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e-mail the pretrial statement to: [e-mail];
8.

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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 January 7, 2016;
9.

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

The opposition to the motion for the attendance of incarcerated witnesses,
if any, shall be filed on or before January 21, 2016; and

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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses
who refuse to testify voluntarily, Plaintiff must notify the Court of their

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names and locations on or before January 7, 2016, and Plaintiff must

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submit the money orders, as described in section A, subsection 4 of this

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Order, to the Court on or before January 21, 2016.

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Dated:

October 14, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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