Moore v. Gipson et al

Filing 135

ORDER GRANTING IN PART Plaintiff's 133 Motion for Reconsideration of Incarcerated Witnesses signed by Magistrate Judge Barbara A. McAuliffe on 3/22/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:13-cv-01820-BAM (PC)

MERRICK JOSE MOORE,
Plaintiff,

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ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR RECONSIDERATION OF
INCARCERATED WITNESSES

v.

(ECF No. 133)

CASAS, et al,
Defendants.

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Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s Eighth Amendment claims for excessive force against Defendants Casas, Meier,

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Childress, and Adams, and for failure to intervene against Defendants Ford and Thornburg. All

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parties have consented to the jurisdiction of a United States Magistrate Judge. (ECF Nos. 7, 74.)

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This matter is set for trial on April 29, 2019.

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On January 31, 2019, Plaintiff filed a motion for attendance of incarcerated and

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unincarcerated witnesses. (ECF No. 115.) Plaintiff’s motion was granted in part and denied in

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part on March 5, 2019. (ECF No. 122.) Specifically, Plaintiff’s motion with respect to his

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incarcerated witnesses was denied, due to his failure to submit offers of proof regarding the

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content and relevance of the witnesses’ expected testimony at trial. (ECF No. 122.) On March
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20, 2019, Plaintiff filed a motion for reconsideration regarding his requested incarcerated

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witnesses. (ECF No. 133.) Plaintiff attached to his motion two declarations signed by Inmate

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Calloway (P-97743) and one declaration signed by Inmate Quezada (P-90436). (Id.)

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At the March 22, 2019 hearing, the Court inquired whether Defendants had received the

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motion, and whether they intended to file a response. As discussed on the record, the Court

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indicated that the information submitted was not sufficient to alter the Court’s prior ruling on the

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requested witnesses, with the exception of Inmate Calloway. The declaration dated March 13,

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2013, attached to Plaintiff’s motion, appears to demonstrate that Inmate Calloway was a

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percipient witness to the February 15, 2013 events at issue in this action.

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At the hearing, Defendants stated that if the Court is inclined to grant Plaintiff’s request to

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call Inmate Calloway to testify, they waived any opposition to the motion with respect to Inmate

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Calloway.

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Accordingly, Plaintiff’s motion for reconsideration of incarcerated witnesses, (ECF No.

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133), is HEREBY GRANTED IN PART, solely with respect to Inmate Calloway. The motion is

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DENIED with respect to all other requested incarcerated witnesses. The Court will issue the

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necessary transportation order for Inmate Calloway in due course.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 22, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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