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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICK HAZELTINE, 12 Plaintiff, 13 14 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., 15 Defendants. 16 17 18 19 I. RELEVANT PROCEDURAL HISTORY 20 Rick Hazeltine (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis 21 with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds with 22 Plaintiff’s First Amended Complaint filed on July 6, 2015, on the following claim: Excessive 23 force in violation of the Fourteenth Amendment against defendants Ian Young, Benjamin 24 Gamez, Rashaun Casper, Julius Oldan, Porfirio Sanchez Negrete, David Avilia, Rickey Smith, 25 and Charles Ho (collectively “Defendants”). (ECF No. 27.) 26 This case is scheduled for trial on July 10, 2018, at 8:30 a.m. before the Honorable Dale 27 A. Drozd. A telephonic trial confirmation hearing is scheduled for May 14, 2018, at 1:30 p.m. 28 before the Honorable Dale A. Drozd. 1 1 On March 29, 2018, Plaintiff filed a Motion for Attendance of Incarcerated Witnesses at 2 trial. (ECF No. 96.) On March 30, 2018, Defendants filed an opposition to the motion. (ECF 3 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. 4 5 Local Rule 230(l). 6 II. ATTENDANCE OF INMATE WITNESSES AT TRIAL 7 On March 8, 2018, the court issued an amended Second Scheduling Order advising 8 Plaintiff of the requirements for bringing inmate witnesses to trial who voluntarily agree to 9 testify. (ECF No. 91 at 3-4 ¶1.) Plaintiff was informed that the court must issue an order 10 before Plaintiff’s incarcerated witnesses can come to court to testify. (Id.) The court will not 11 issue such an order unless it is satisfied that: (a) the prospective witness is willing to attend, and 12 (b) the prospective witness has actual knowledge of relevant facts. (Id.) Plaintiff was advised 13 that he must file a Motion for Attendance of Incarcerated Witnesses, stating the name, address, 14 and prison identification number of each such Witness, accompanied by declarations by 15 Plaintiff or the Witnesses, showing that each Witness is willing to testify and has actual 16 knowledge of relevant facts. (Id.) Plaintiff was advised that the declaration must show that the 17 prospective Witness was an eyewitness or ear-witness to relevant facts, and must be specific 18 about the incident at issue in this case, including when and where it occurred, who was present, 19 and how the prospective Witness happened to be in a position to see or hear what occurred at 20 the time it occurred. (Id.) 21 III. PLAINTIFF’S MOTION 22 Plaintiff seeks to bring four incarcerated witnesses to trial: (1) Rodney Short; (2) John 23 Edgington; (3) Ramiro G. Madera; and (4) Stephen Arnold. Plaintiff has provided the names 24 and identification numbers of the four prospective witnesses. (ECF No. 96 at 1.) However, 25 Plaintiff has not informed the court of the locations of the witnesses or submitted his own 26 declaration, or declarations by the prospective witnesses, showing that each witness is willing 27 to testify, and that each of the prospective witnesses was an eyewitness or ear-witness to 28 relevant facts. 2 1 Defendants argue that Plaintiff has not complied with the court’s order in that he only 2 lists the names of the potential witnesses without support of declarations from anyone that these 3 witnesses have actual knowledge of relevant facts. 4 Plaintiff replies that his pleadings should be liberally construed because he is a pro per 5 litigant. Plaintiff asserts that in his Pretrial Statement, filed on March 29, 2018, he informed 6 Defendants that his prospective witnesses were eye witnesses and declared under penalty of 7 perjury that the witnesses are willing to testify. Plaintiff states that Defendants already have 8 video evidence and tape recorded statements by his prospective witnesses, and that Defendants 9 failed to use due diligence to seek out the information he was required to provide in his Motion 10 for Attendance of Incarcerated Witnesses. 11 IV. DISCUSSION 12 Plaintiff has improperly referred Defendants and the court to his Pretrial Statement to 13 find information that Plaintiff was required to provide in his Motion for Attendance of 14 Incarcerated Witnesses. The court is not required to comb through all of Plaintiff’s documents 15 to find information that he should have provided in the Motion. Even if the court were inclined 16 to do so, Plaintiff’s has not provided the information needed in the Pretrial Statement. Plaintiff 17 claims to have submitted a declaration under penalty of perjury asserting that his prospective 18 witnesses agreed to testify voluntarily. However, no such declaration was filed. Here, Plaintiff 19 has clearly failed to comply with the court’s order. Therefore, Plaintiff’s Motion for Attendance 20 of Incarcerated Witnesses shall be denied. 21 V. 22 23 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. 24 25 26 27 IT IS SO ORDERED. Dated: April 11, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 28 3

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