Hazeltine v. Hicks et al
Filing
99
ORDER Denying Plaintiff's 96 Motion for Attendance of Incarcerated Witnesses signed by Magistrate Judge Gary S. Austin on 04/11/2018. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICK HAZELTINE,
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Plaintiff,
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vs.
1:14-cv-00056-DAD-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR ATTENDANCE OF INCARCERATED
WITNESSES
(ECF No. 96.)
FRANCES HICKS, et al.,
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Defendants.
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I.
RELEVANT PROCEDURAL HISTORY
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Rick Hazeltine (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis
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with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds with
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Plaintiff’s First Amended Complaint filed on July 6, 2015, on the following claim: Excessive
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force in violation of the Fourteenth Amendment against defendants Ian Young, Benjamin
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Gamez, Rashaun Casper, Julius Oldan, Porfirio Sanchez Negrete, David Avilia, Rickey Smith,
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and Charles Ho (collectively “Defendants”). (ECF No. 27.)
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This case is scheduled for trial on July 10, 2018, at 8:30 a.m. before the Honorable Dale
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A. Drozd. A telephonic trial confirmation hearing is scheduled for May 14, 2018, at 1:30 p.m.
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before the Honorable Dale A. Drozd.
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On March 29, 2018, Plaintiff filed a Motion for Attendance of Incarcerated Witnesses at
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trial. (ECF No. 96.) On March 30, 2018, Defendants filed an opposition to the motion. (ECF
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No. 97.) On April 9, 2018, Plaintiff filed a reply to the opposition. (ECF No. 98.)
Plaintiff’s Motion for Attendance of Incarcerated Witnesses is now before the court.
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Local Rule 230(l).
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II.
ATTENDANCE OF INMATE WITNESSES AT TRIAL
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On March 8, 2018, the court issued an amended Second Scheduling Order advising
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Plaintiff of the requirements for bringing inmate witnesses to trial who voluntarily agree to
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testify. (ECF No. 91 at 3-4 ¶1.) Plaintiff was informed that the court must issue an order
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before Plaintiff’s incarcerated witnesses can come to court to testify. (Id.) The court will not
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issue such an order unless it is satisfied that: (a) the prospective witness is willing to attend, and
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(b) the prospective witness has actual knowledge of relevant facts. (Id.) Plaintiff was advised
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that he must file a Motion for Attendance of Incarcerated Witnesses, stating the name, address,
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and prison identification number of each such Witness, accompanied by declarations by
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Plaintiff or the Witnesses, showing that each Witness is willing to testify and has actual
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knowledge of relevant facts. (Id.) Plaintiff was advised that the declaration must show that the
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prospective Witness was an eyewitness or ear-witness to relevant facts, and must be specific
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about the incident at issue in this case, including when and where it occurred, who was present,
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and how the prospective Witness happened to be in a position to see or hear what occurred at
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the time it occurred. (Id.)
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III.
PLAINTIFF’S MOTION
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Plaintiff seeks to bring four incarcerated witnesses to trial: (1) Rodney Short; (2) John
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Edgington; (3) Ramiro G. Madera; and (4) Stephen Arnold. Plaintiff has provided the names
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and identification numbers of the four prospective witnesses. (ECF No. 96 at 1.) However,
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Plaintiff has not informed the court of the locations of the witnesses or submitted his own
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declaration, or declarations by the prospective witnesses, showing that each witness is willing
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to testify, and that each of the prospective witnesses was an eyewitness or ear-witness to
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relevant facts.
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Defendants argue that Plaintiff has not complied with the court’s order in that he only
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lists the names of the potential witnesses without support of declarations from anyone that these
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witnesses have actual knowledge of relevant facts.
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Plaintiff replies that his pleadings should be liberally construed because he is a pro per
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litigant. Plaintiff asserts that in his Pretrial Statement, filed on March 29, 2018, he informed
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Defendants that his prospective witnesses were eye witnesses and declared under penalty of
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perjury that the witnesses are willing to testify. Plaintiff states that Defendants already have
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video evidence and tape recorded statements by his prospective witnesses, and that Defendants
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failed to use due diligence to seek out the information he was required to provide in his Motion
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for Attendance of Incarcerated Witnesses.
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IV.
DISCUSSION
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Plaintiff has improperly referred Defendants and the court to his Pretrial Statement to
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find information that Plaintiff was required to provide in his Motion for Attendance of
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Incarcerated Witnesses. The court is not required to comb through all of Plaintiff’s documents
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to find information that he should have provided in the Motion. Even if the court were inclined
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to do so, Plaintiff’s has not provided the information needed in the Pretrial Statement. Plaintiff
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claims to have submitted a declaration under penalty of perjury asserting that his prospective
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witnesses agreed to testify voluntarily. However, no such declaration was filed. Here, Plaintiff
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has clearly failed to comply with the court’s order. Therefore, Plaintiff’s Motion for Attendance
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of Incarcerated Witnesses shall be denied.
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V.
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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion for
Attendance of Incarcerated Witnesses, filed on March 29, 2018, is DENIED.
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IT IS SO ORDERED.
Dated:
April 11, 2018
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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