Shehee v. Nguyen et al

Filing 57

TRIAL SCHEDULING ORDER signed by Magistrate Judge Michael J. Seng on 2/3/2017. Telephonic Trial Confirmation Hearing set for 11/15/2018 at 10:00 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. Jury Trial set for 1/15/2019 at 08:30 AM in Courtroom 4 (LJO) before Chief Judge Lawrence J. O'Neill. (Attachments: # 1 Local Rule 281). (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 GREGORY ELL SHEHEE, 12 13 14 15 16 17 18 19 Plaintiff, v. KIM NGUYEN, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01154-LJO-MJS TRIAL SCHEDULING ORDER Telephonic Trial Confirmation Hearing: November 15, 2018, at 10:00 am Courtroom 6 (MJS) Jury Trial: January 15, 2019, at 8:30 am in Courtroom 4 (LJO) CLERK TO SEND LOCAL RULE 281 TO PLAINTIFF 20 21 Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights 22 action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s third 23 amended complaint against Defendants Nguyen, Long, Leavens, and Moua for denying 24 Plaintiff a cane and access to educational services. (ECF No. 34.) 25 The matter has been assigned to United States District Judge Lawrence J. O’Neill. To 26 facilitate the efficient resolution of prisoner civil rights cases, Judge O’Neill requires that all 27 such cases be set for trial at or around the time of Defendants’ first appearance. Accordingly, 28 1 1 pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the Court herein sets a 2 schedule for trial of this matter. 3 The parties are advised that nothing herein supersedes the provisions of the Court’s 4 prior discovery and scheduling order. To the contrary, the parties are required to abide by 5 that order and to pursue any discovery, amendments, or motions with diligence. In all such 6 matters, the parties should manage their efforts so that they are prepared to proceed to trial 7 as scheduled. The parties are warned that a continuance of the trial date is unlikely, and will 8 only be granted upon a showing of good cause and a determination that, despite the parties’ 9 best efforts, proceeding to trial as scheduled is impracticable. 10 The parties are required to file pretrial statements in accordance with Local Rule 281 11 and the schedule set forth herein. In addition, Plaintiff must make a particularized showing to 12 obtain the attendance of witnesses at trial. The procedures and requirements for doing so 13 are outlined in detail below. Failure to comply with the provisions of this Order may result in the imposition 14 15 of sanctions which could include dismissal of the action or entry of default. 16 I. SPECIAL PROCEDURES FOR PLAINTIFF’S WITNESSES 17 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each 18 of the alleged facts that support claims made in the lawsuit. In general, there are two kinds of 19 trial evidence: (1) exhibits and (2) testimony of witnesses. It is Plaintiff’s responsibility to 20 produce all of the evidence to prove his case, whether that evidence is in the form of exhibits 21 or testimony from witnesses. If Plaintiff wants to call witnesses to testify, he must comply with 22 the following procedures to ensure that the witnesses will appear at trial and be available to 23 testify.1 24 precluding testimony from Plaintiff’s witnesses. Failure to comply with the procedures set forth below may result in the Court 25 26 1 27 28 Notwithstanding the requirements set forth herein, it is within the Court’s discretion to grant a motion for the attendance of incarcerated witnesses if the moving party has shown the witnesses have relevant information and the Court determines the witnesses’ presence will substantially further the resolution of the case. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983). 2 1 2 A. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily 3 An incarcerated witness who agrees to come to court and testify at trial can only do so 4 if the Court orders the warden or other custodian to allow him or her to be transported to 5 court. The Court will not issue such an order unless it is satisfied that: (a) the prospective 6 witness is willing to attend; and (b) he or she has actual knowledge of relevant facts. 7 If Plaintiff wants to call such witnesses, Plaintiff must serve and file with the pretrial 8 statement a written motion for a court order directing that the witnesses be brought to trial. 9 The motion must: (1) state the name, address, and prison identification number of each such 10 witness; and (2) include declarations showing that each witness is willing to testify and that 11 each witness has actual knowledge of relevant facts. The motion should be entitled “Motion 12 for Attendance of Incarcerated Witnesses.” 13 The willingness of the prospective witness to come and testify can be shown in one of 14 two ways: (a) the Plaintiff can swear under penalty of perjury that the prospective witness 15 has informed him that he or she is willing to testify voluntarily without being subpoenaed; if 16 so, the declaration must state when and where the witness so advised the Plaintiff; or (b) 17 Plaintiff can serve and file a declaration, signed under penalty of perjury by the prospective 18 witness, in which the witness states he or she is willing to testify without being subpoenaed. 19 The prospective witness’s actual knowledge of relevant facts also can be shown in 20 one of two ways: (a) if Plaintiff has actual firsthand knowledge that the prospective witness 21 was an eyewitness or an ear-witness to the relevant facts (for example, if the incident 22 occurred in Plaintiff’s cell and Plaintiff saw that a cellmate was present at the time and 23 observed the incident), Plaintiff can swear by declaration under penalty of perjury that the 24 prospective witness has actual knowledge; or (b) Plaintiff can serve and file a declaration 25 signed under penalty of perjury by the prospective witness in which the witness describes the 26 relevant facts to which he or she was an eye- or ear-witness. 27 28 3 1 Whether the declaration is made by the Plaintiff or by the prospective witness, it must 2 be specific about the incident, when and where it occurred, who was present, and how the 3 prospective witness happened to be in a position to see or hear what occurred. 4 The Court has discretion to grant a motion for the attendance of incarcerated 5 witnesses if the moving party shows that the witnesses have relevant information and the 6 Court finds that the witnesses’ presence will substantially further the resolution of the case. 7 Wiggins, 717 F.2d at 468 n.1. The Court will review and rule on the motion for attendance of 8 incarcerated witnesses, specifying which will be brought to court. Subsequently, the Court 9 will order the witness’s custodian to bring the witness to court. 10 Motions for the attendance of incarcerated witnesses, if any, must be filed on or 11 before September 20, 2018. Oppositions, if any, must be filed on or before October 18, 12 2018. 13 14 B. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to Testify Voluntarily 15 If Plaintiff seeks to obtain the attendance of incarcerated witnesses who refuse to 16 testify voluntarily, Plaintiff should submit, by September 20, 2018, a motion for the 17 attendance of such witnesses. 18 addition, the party must indicate in the motion that the incarcerated witnesses are not willing 19 to testify voluntarily. 20 21 C. Such motion should be in the form described above. In Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to Testify Voluntarily 22 Plaintiff does not need Court permission or a Court Order to have unincarcerated 23 witnesses appear and testify if the witnesses are willing to do so voluntarily (and Plaintiff has 24 properly identified the witnesses in his Pretrial Statement). It is Plaintiff’s sole responsibility to 25 notify the witness of the time and date of trial and arrange for his or her presence. The Court 26 need not be involved. 27 28 4 D. 1 2 Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to Testify Voluntarily 3 If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, 4 the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the party 5 seeking the witness’s presence must deposit fees for the witness in advance of subpoenaing 6 the witness. Id. In the case of an unincarcerated witness, the fee that must be deposited is 7 the daily witness fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 8 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses 9 who refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 10 location of each unincarcerated witness. Plaintiff is to notify the Court of the names and 11 locations of such witnesses on or before September 20, 2018. 12 The Court will calculate the travel expense for each such witness and notify Plaintiff of 13 the amount(s) to be deposited for each. Plaintiff must then, for each witness, submit a money 14 order made payable to the witness for the full amount of the witness’s travel expenses plus 15 the daily witness fee of $40.00. The subpoena will not be served on the unincarcerated 16 witness by the United States Marshal unless the money order is tendered to the Court. There 17 is no legal basis for using public funds to cover such expenses in civil cases even for parties 18 proceeding in forma pauperis. 19 If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse 20 to testify voluntarily, Plaintiff must submit the money orders to the Court on or before 21 November 1, 2018. 22 II. 23 24 25 26 27 28 SCHEDULING ORDER With regard to further litigation and trial of this matter, the Court HEREBY ORDERS as follows: 1. This matter is set for a telephonic trial confirmation hearing before the undersigned on November 15, 2018, at 10:00 am in Courtroom 6; 2. This matter is set for jury trial before the Honorable Lawrence J. O’Neill on January 15, 2019, at 8:30 am in Courtroom 4; 5 1 3. Counsel for Defendants is required to arrange for the participation of Plaintiff in the telephonic trial confirmation hearing; 2 3 4. The parties may participate in the hearing by calling (888) 294-5984 and entering access code 4446176#; 4 5 5. Plaintiff shall file and serve a pretrial statement as described in this Order on or before September 20, 2018; 6 7 6. Defendants shall file and serve a pretrial statement as described in this Order on or before October 18, 2018; 8 9 7. In addition to electronically filing their pretrial statement, Defendants shall e-mail their pretrial statement to: mjsorders@caed.uscourts.gov; 10 11 8. If Plaintiff intends to call incarcerated witnesses at trial, Plaintiff shall file and serve 12 a motion for attendance of incarcerated witnesses as described in this Order on or 13 before September 20, 2018; 14 9. Opposition to the motion for the attendance of incarcerated witness, if any, shall be filed and served on or before October 18, 2018; 15 16 10. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse 17 to testify voluntarily, Plaintiff must notify the Court of their names and locations on 18 or before September 20, 2018, and Plaintiff must submit the money orders, as 19 described in section I subsection D of this Order, on or before November 1, 2018; 20 and 21 11. The Clerk’s Office shall send Plaintiff a copy of Local Rule 281. 22 23 IT IS SO ORDERED. 24 25 Dated: February 3, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 26 27 28 6

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