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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 1:13-cv-01820-BAM (PC) MERRICK JOSE MOORE, Plaintiff, 13 14 15 ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR RECONSIDERATION OF INCARCERATED WITNESSES v. (ECF No. 133) CASAS, et al, Defendants. 16 17 18 Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s Eighth Amendment claims for excessive force against Defendants Casas, Meier, 21 Childress, and Adams, and for failure to intervene against Defendants Ford and Thornburg. All 22 parties have consented to the jurisdiction of a United States Magistrate Judge. (ECF Nos. 7, 74.) 23 This matter is set for trial on April 29, 2019. 24 On January 31, 2019, Plaintiff filed a motion for attendance of incarcerated and 25 unincarcerated witnesses. (ECF No. 115.) Plaintiff’s motion was granted in part and denied in 26 part on March 5, 2019. (ECF No. 122.) Specifically, Plaintiff’s motion with respect to his 27 incarcerated witnesses was denied, due to his failure to submit offers of proof regarding the 28 content and relevance of the witnesses’ expected testimony at trial. (ECF No. 122.) On March 1 1 20, 2019, Plaintiff filed a motion for reconsideration regarding his requested incarcerated 2 witnesses. (ECF No. 133.) Plaintiff attached to his motion two declarations signed by Inmate 3 Calloway (P-97743) and one declaration signed by Inmate Quezada (P-90436). (Id.) 4 At the March 22, 2019 hearing, the Court inquired whether Defendants had received the 5 motion, and whether they intended to file a response. As discussed on the record, the Court 6 indicated that the information submitted was not sufficient to alter the Court’s prior ruling on the 7 requested witnesses, with the exception of Inmate Calloway. The declaration dated March 13, 8 2013, attached to Plaintiff’s motion, appears to demonstrate that Inmate Calloway was a 9 percipient witness to the February 15, 2013 events at issue in this action. 10 At the hearing, Defendants stated that if the Court is inclined to grant Plaintiff’s request to 11 call Inmate Calloway to testify, they waived any opposition to the motion with respect to Inmate 12 Calloway. 13 Accordingly, Plaintiff’s motion for reconsideration of incarcerated witnesses, (ECF No. 14 133), is HEREBY GRANTED IN PART, solely with respect to Inmate Calloway. The motion is 15 DENIED with respect to all other requested incarcerated witnesses. The Court will issue the 16 necessary transportation order for Inmate Calloway in due course. 17 18 19 IT IS SO ORDERED. Dated: /s/ Barbara March 22, 2019 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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