Borja v. Williams et al

Filing 44

SECOND SCHEDULING ORDER ORDER REQUIRING Defendant Williams to notify the Court whether he Consents to Magistrate Judge Jurisdiction, within Thirty Days; ORDER DIRECTING Clerk's Office to send Local Rule 281 to Plaintiff and Consent Form to Defen dant Williams, signed by Magistrate Judge Gary S. Austin on 03/88/17.(Consent/Decline Deadline: 4/11/2017, Jury Trial set for 8/8/2017 at 08:30 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd, Trial Confirmation Hearing set for 6/12/2017 at 02:30 PM in Courtroom 5 (DAD) before District Judge Dale A. Drozd) (Attachments: # 1 Local Rule 281, # 2 Consent/Decline Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:13-cv-01445-DAD-GSA-PC

TANIA BORJA,
Plaintiff,

SECOND SCHEDULING ORDER

vs.

ORDER REQUIRING DEFENDANT
WILLIAMS TO NOTIFY COURT
WHETHER HE CONSENTS TO
MAGISTRATE JUDGE JURISDICTION,
WITHIN THIRTY DAYS

C/O K. WILLIAMS,
Defendant.

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ORDER DIRECTING CLERK=S OFFICE
TO SEND LOCAL RULE 281 TO
PLAINTIFF AND CONSENT FORM TO
DEFENDANT WILLIAMS

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Telephonic Trial Confirmation Hearing:
June 12, 2017 at 2:30 p.m.
in Courtroom 5 (DAD)

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Jury Trial:

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August 8, 2017, at 8:30 a.m.
in Courtroom 5 (DAD)

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Plaintiff Tania Borja (“plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. This action is proceeding on the first amended complaint,

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filed March 31, 2014, on plaintiff=s Eighth Amendment excessive force claim against defendant

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Correctional Officer (C/O) K. Williams (“defendant”). (ECF No. 8.)
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Defendants’ motion for summary judgment was denied in part on November 21, 2016. 1

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(ECF No. 40.) Defendant Williams has indicated that a settlement conference at this stage of

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the proceedings would not be beneficial. (ECF No. 42.) Therefore, pursuant to Rule 16(b) of

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the Federal Rules of Civil Procedure, the court will by this order, set a further schedule for this

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litigation.

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The parties are required to file pre-trial statements in accordance with the schedule set

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forth herein.

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

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

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making such a showing are outlined in detail below. Plaintiff is advised that failure to

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

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witnesses named in his pre-trial statement.

In addition to the matters already required to be addressed in the pre-trial

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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 kinds

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of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is plaintiff=s responsibility

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to produce all of the evidence to prove her case, whether that evidence is in the form of exhibits

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or witness testimony. If plaintiff wants to call witnesses to testify, she must follow certain

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procedures to ensure that the witnesses will be at the trial and available to testify.

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1.

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 this court orders the warden or other custodian to permit

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the witness to be transported to court. This court will not issue such an order unless it is

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

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has actual knowledge of relevant facts.

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Defendant S. Johnson, and plaintiff=s claims of an unconstitutional search under the Fourth
Amendment, were dismissed from the action on November 21, 2016 via summary judgment. (ECF No. 40.)

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

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voluntarily to attend the trial must serve and file concurrent with the pre-trial statement a

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written motion for a court order requiring that such witnesses be brought to court at the time of

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trial. The motion must: (1) state the name, address, and prison identification number of each

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

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testify and that each witness has actual knowledge of relevant facts. The motion should be

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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 has

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informed the party that he or she is willing to testify voluntarily without being subpoenaed, in

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which declaration the party must state when and where the prospective witness informed the

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party of this willingness; or (2) the party can serve and file a declaration, signed under penalty

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of perjury by the prospective witness, in which the witness states that he or she is willing to

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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 cell

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

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may swear to the cellmate=s ability to testify), the party himself can swear by declaration under

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penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve

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and file a declaration signed under penalty of perjury by the prospective witness in which the

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witness describes the relevant facts to which the prospective witness was an eye- or

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ear-witness. Whether the declaration is made by the party or by the prospective witness, it

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must be specific about the incident, when and where it occurred, who was present, and how the

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prospective witness happened to be in a position to see or to hear what occurred at the time it

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occurred.

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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 will

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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
before April 12, 2017. Oppositions, if any, must be filed on or before May 12, 2017.
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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 pre-trial 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 to

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testify voluntarily.

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3.

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.

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4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse

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

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testify voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition,

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the party seeking the witness=s presence must tender an appropriate sum of money for the

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

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daily witness fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821.

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

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refuse to testify voluntarily, plaintiff must first notify the court in writing of the name and

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location of each non incarcerated witness. The court will calculate the travel expense for each

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non incarcerated 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 witness’s

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

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unincarcerated witness by the United States Marshal unless the money order is tendered to the
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court. Because no statute authorizes the use of public funds for these expenses in civil cases,

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the tendering of witness fees and travel expenses is required even if the party was granted leave

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to proceed in forma pauperis.

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If plaintiff wishes to have the Marshal serve any unincarcerated witnesses who

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refuse to testify voluntarily, plaintiff must submit the money orders to the court no later

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than May 12, 2017. In order to ensure timely submission of the money orders, plaintiff must

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notify the court of the names and locations of his witnesses, in compliance with step one, no

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later than April 12, 2017.

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The parties are advised that failure to file pre-trial 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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Finally, the court shall direct the Clerk=s Office to provide Defendant Williams with a

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consent/decline form.2 Within thirty days from the date of service of this order, Defendant

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Williams shall inform the court whether he consents to or declines Magistrate Judge

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jurisdiction by filling out the form and returning it to the court.

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Accordingly, the court HEREBY ORDERS as follows:

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1.

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Dale A. Drozd on June 12, 2017, at 2:30 p.m. in Courtroom 5;
2.

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

This matter is set for jury trial before the Honorable Dale A. Drozd on August
8, 2017, at 8:30 a.m. in Courtroom 5;

3.

Counsel for defendant is required to arrange for the participation of plaintiff in

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the telephonic trial confirmation hearing and to initiate the telephonic hearing at

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[phone];

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4.

Plaintiff shall serve and file a pretrial statement as described in this order on or
before April 12, 2017.

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Plaintiff consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c) on September 30,
2013. (ECF No. 5.)
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5.

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order on or before May 12, 2017;
6.

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Defendant Williams shall serve and file a pretrial statement as described in this

In addition to electronically filing their pretrial statement, defendant shall e-mail
the pretrial statement to: [e-mail];

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If plaintiff intends to call incarcerated witnesses at time of trial, plaintiff shall

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serve and file a motion for attendance of incarcerated witnesses as described in

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this order on or before April 12, 2017;

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The opposition to the motion for the attendance of incarcerated witnesses, if any,
shall be filed on or before May 12, 2017;

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If plaintiff wishes to obtain the attendance of unincarcerated witnesses who

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refuse to testify voluntarily, plaintiff must submit the money orders, as described

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in subsection 4 of this order, to the court on or before May 12, 2017;

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10.

The Clerk=s Office shall send a consent/decline form to defendant Williams;

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Within thirty (30) days from the date of service of this order, Defendant

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Williams shall notify the court whether he consents to or declines Magistrate

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Judge jurisdiction by filling out the enclosed form and returning it to the court;

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and

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12.

The Clerk=s Office shall send plaintiff a copy of Local Rule 281.

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IT IS SO ORDERED.
Dated:

March 8, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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