Bosley v. Valasco et al

Filing 91

ORDER DENYING Plaintiff's (1) 86 Motion for the Production of Non-Prisoners, (2) 87 Motion for the Production of Prisoners, and (3) Ex Parte 85 Application to Exclude Payment for Non-Prisoners, signed by Magistrate Judge Michael J. Seng on 11/14/16. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT DEWAYNE BOSLEY, JR.,
Plaintiff,

12
13
14
15

Case No. 1:14-cv-00049-MJS (PC)
ORDER DENYING PLAINTIFF’S

v.

1. MOTION FOR THE PRODUCTION
OF NON-PRISONERS,

M. VELASCO, et al.,

2. MOTION FOR THE PRODUCTION
OF PRISONERS, AND

Defendants.

16

3. EX PARTE APPLICATION TO
EXCLUDE PAYMENT FOR NONPRISONERS

17
18
19

(ECF Nos. 85, 86, 87)

20
21
22
23
24
25
26
27
28

Plaintiff is proceeding pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s Second Amended
Complaint charging Defendant Velasco with excessive force in violation of the
Fourteenth Amendment. The matter is set for a telephonic trial confirmation hearing on
November 17, 2016, and a trial on January 18, 2017. (ECF Nos. 75, 80.)
On November 7, 2016, Plaintiff’s motion for the attendance of incarcerated and
unincarcerated witnesses was denied in its entirety. (ECF No. 88.) Now pending are
three more motions concerning the attendance of these and additional witnesses. (ECF
1

1
2
3

Nos. 85-87.) Defendant opposes these motions. (ECF No. 90.) For the reasons set forth
here, they will be denied.
I.

4
5
6
7
8
9
10

Previously, Plaintiff moved for the attendance of two incarcerated witnesses,
Lawrance Williams and DeMarco Richards, to testify voluntarily at the January 18, 2017,
trial. Plaintiff’s motion was denied as to both witnesses because he failed to satisfy the
Court that these witnesses were willing to attend the trial and that they had actual
knowledge of relevant facts. Plaintiff’s motion was also denied as to DeMarco Richards
because Plaintiff at no time identified Richards as a witness in response to Defendant’s
November 25, 2015, Interrogatory asking for the identity of witnesses.1

11
12
13
14
15
16
17

Plaintiff’s second request for the attendance of incarcerated witnesses seeks the
attendance of these individuals: Lawrance Williams, DeMarco Richards, Jorge
Hernandez, Jessie Moreno, Robbie Shanklen, Lucky Vang, and Saren Hem.2 Again,
Plaintiff fails to provide any information regarding the willingness of these witnesses to
testify or any details regarding their knowledge of relevant facts. Additionally, Plaintiff
failed to previously identify DeMarco Richards, Robbie Shanklen, Lucky Vang, and
Saren Hem as witnesses.

18
19
20
21

Thus, for the reasons set forth in the Court’s November 7, 2016, Order denying
Plaintiff’s motion for the attendance of witnesses, Plaintiff’s motion here for attendance
of these incarcerated witnesses will also be denied.
II.

22
23
24

Motion for Attendance of Incarcerated Witnesses

Motion for Subpoenas for Unincarcerated Witnesses
In his previous motion to obtain the attendance of unincarcerated witnesses,

Plaintiff identified Jessie Moreno, Roberto Toledo, Jose Eduardo Garcia, Jorge
Hernandez, and Michael John Kelly, Fresno County Jail Staff Psychiatrist Dr. M. Amin,

25
26
27
28

1

In his response to Defendant’s Interrogatory, Plaintiff identified only these witnesses: Gregory Luis Gomez, Jose
Eduardo Garcia, Lawrance Williams, Jorge Hernandez, and Jessie Moreno. See Def.’s Opp’n to Pl.’s Mot.
Incarcerated Witn., Ex. B (ECF No. 82).
2
In his previous motion, Plaintiff identified Jessie Moreno, Jorge Hernandez, and Jose Eduardo Garcia as
unincarcerated witnesses. (See ECF No. 79.)

2

1
2
3
4
5

and Fresno County Jail Medical Service Staff Member Herbert Hanter. Plaintiff’s motion
was denied in its entirety for his failure to identify four of the witnesses (Roberto Toledo,
Dr. Amin, Herbert Hunter or Michael John Kelly) in response to Defendant’s
interrogatory and for his failure to include necessary information regarding the location
of the other witnesses (Jessie Moreno, Jose Eduardo Garcia, and Jorge Hernandez).

6
7
8
9
10
11
12
13
14
15
16

In this second motion, Plaintiff seeks subpoenas for the attendance of these
unincarcerated witnesses: Hector Lara, Dr. Amin, Enrique Rodriguez, and H. Hunter.
None of these witnesses was identified by Plaintiff in his response to Defendant’s
discovery request or at any time thereafter. For this reason, Plaintiff’s motion will be
denied. Fed. R. Civ. P. 37(c)(1). Plaintiff’s related motion to be excused from payment
of witness fees will therefore be denied as moot.
III.

Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for the production of non-prisoners (ECF No. 86) is DENIED;
2. Plaintiff’s motion for the production of prisoners (ECF No. 87) is DENIED; and
3. Plaintiff’s ex parte application to exclude payment for non-prisoners (ECF No.

17

85) is DENIED.

18
19 IT IS SO ORDERED.
20
21

Dated:

November 14, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28
3