Jones v. Speidell et al

Filing 76

THIRD SCHEDULING ORDER signed by Magistrate Judge Jennifer L. Thurston on 03/10/2021. Telephonic Trial Confirmation Hearing set for 11/29/2021 at 10:00 AM, before Magistrate Judge Jennifer L. Thurston. Jury Trial set for 2/7/2022 at 08:30 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES B. JONES,

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Plaintiff,

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v.
R. SPEIDELL; M. STEWART,

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Case No. 1:16-cv-01335-JLT (PC)
THIRD SCHEDULING ORDER
Trial Confirmation Hearing: November 29, 2021
Jury Trial: February 7, 2022

Defendants.

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This matter has been reassigned to the undersigned for all purposes, including trial and

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entry of judgment, per to the parties’ consent. (Docs. 72-74.) Pursuant to Federal Rule of Civil

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Procedure 16(b) and Local Rule 281, the Court sets the following pretrial schedule and trial date.

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The parties may disregard the prior scheduling order issued on April 16, 2020 (Doc. 60).

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I.

PRETRIAL STATEMENT
The parties are required to file pretrial statements pursuant to Local Rule 281 and must

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comply with the schedule set forth in this order. Failure to comply with the provisions of this

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order or the Local Rules may result in the imposition of sanctions up to and including dismissal of

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this action or the entry of default.

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II.

WITNESSES
At the trial of this case, the parties must be prepared to introduce evidence to prove each

of the alleged facts that support the claims raised in this lawsuit. In general, there are two kinds of

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trial evidence: (1) exhibits and (2) testimony of witnesses. The parties are responsible for

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producing the evidence to prove their cases, whether that evidence is in the form of exhibits or

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witness testimony.

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If Plaintiff wishes to call witnesses to testify, he must follow certain procedures to ensure

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that the witnesses will be at the trial and available to testify. Plaintiff is required to make a

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particularized showing, the procedures and requirements for which are outlined in detail below.

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Plaintiff is advised that failure to comply with these procedures may result in the preclusion of

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witnesses named in his pretrial statement.1

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A. Procedures for Obtaining Attendance of Incarcerated Witnesses

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An incarcerated witness cannot attend court to provide testimony unless the Court orders

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the warden or other custodian to permit the witness to be transported to court. The Court will not

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issue such an order unless it is satisfied that the prospective witness has actual knowledge of

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relevant facts. Motions for the attendance of incarcerated witnesses must be served and filed

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concurrent with the pretrial statement on or before October 18, 2021. Any such motion

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should be entitled, “Motion for Attendance of Incarcerated Witnesses.” Oppositions, if any, must

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be filed on or before November 8, 2021.

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The Court will review and rule on the motion for attendance of incarcerated witnesses,

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specifying which prospective witnesses shall be brought to court. Subsequently, the Court will

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issue the order necessary to cause the witnesses’ custodian(s) to transport the witnesses to court.

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1. Motions for Attendance of Incarcerated Witnesses Who Agree to Testify

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Voluntarily

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A party intending to introduce the testimony of incarcerated witnesses who voluntarily

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agree to attend trial must file a motion for a court order requiring that such witnesses be

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transported to court at the time of trial. The motion must: (1) state the name, address, and prison

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identification number of each such witness; and, (2) be accompanied by declarations showing that

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each witness is willing to testify and has actual, firsthand knowledge of relevant facts.

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Notwithstanding the requirements set forth herein, it is within the Court’s discretion to grant a motion for the
attendance of incarcerated witnesses based upon such factors as whether the witnesses’ “presence will substantially
further the resolution of the case.” Wiggins v. Alameda Cty., 717 F.2d 466, 468 n.1 (9th Cir. 1983) (citation omitted).
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The willingness of the prospective witness can be shown in one of two ways: (1) the party

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can submit a declaration under penalty of perjury, in which he states that the prospective witness

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has informed the party of his/her willingness to testify without being subpoenaed, as well as when

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and where the prospective witness so informed the party; or, (2) the party can serve and file a

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declaration, signed under penalty of perjury by the prospective witness, in which the witness

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states his/her willingness to testify without being subpoenaed.
The prospective witness’s actual, firsthand knowledge of relevant facts can be shown in

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one of two ways: (1) if the party has firsthand knowledge that the prospective witness was an

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eyewitness or an earwitness to the relevant facts (for example, if an incident occurred in

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Plaintiff’s cell, and Plaintiff saw that a cellmate was present and observed the incident), the party

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may submit a declaration under penalty of perjury, in which he states that the prospective witness

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has actual knowledge; or, (2) the party may file a declaration, signed under penalty of perjury by

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the prospective witness, in which the witness describes the relevant facts to which he/she was an

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eye- or earwitness. Whether the declaration is made by the party or by the prospective witness, it

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must be specific about the incident and provide when and where the incident occurred, who was

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present, and how the prospective witness was in a position that allowed him/her to see or to hear

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what happened.

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2. Motions for Attendance of Incarcerated Witnesses Who Refuse to Testify

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Voluntarily

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If a party wishes to obtain the attendance of incarcerated witnesses who refuse to testify

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voluntarily, the party must submit a motion in the form described above. In addition, the party

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must indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily.

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B. Procedures for Obtaining Attendance of Unincarcerated Witnesses

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1. Voluntary
It is the responsibility of the party who has secured an unincarcerated witness’s voluntary

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attendance to notify the witness of the date and time of trial. The party need not file a motion or

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seek action from the Court.

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2. Involuntary

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If a party wishes to obtain the attendance of unincarcerated witnesses who refuse to testify

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voluntarily, the party must serve the witness with a subpoena. Fed. R. Civ. P. 45. In addition, the

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party must tender an appropriate sum of money for the witness. Id. In the case of an

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unincarcerated witness, the appropriate sum of money is the daily witness fee of $40 plus the

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witness’s travel expenses. 28 U.S.C. § 1821.

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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse to

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testify voluntarily, Plaintiff must notify the Court in writing of the name and location of each

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unincarcerated witness on or before October 18, 2021. The Court will calculate the travel

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expenses for each unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must

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then, for each witness, submit a money order made payable to the witness for the full amount of

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the witness’s travel expenses, plus the daily witness fee, on or before November 8, 2021. The

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United States Marshall will not serve the subpoena on the unincarcerated witness unless

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and until the money order is tendered to the Court. Because no statute authorizes the use of

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public funds for such expenses in civil cases, the tendering of witness fees and travel expenses is

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required even if Plaintiff was granted leave to proceed in forma pauperis.

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III.

ORDER

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Accordingly, the Court ORDERS:

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1. This matter is set for a jury trial before the undersigned on February 7, 2022, at 8:30

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a.m., in the United States courthouse located at 510 19th Street, Bakersfield,

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California 93301.

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2. A telephonic trial confirmation hearing is set for November 29, 2021, at 10:00 a.m.

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Defense counsel shall arrange for Plaintiff’s participation. The conference call number

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is 1-888-557-8511 and the access code is 1652736. Because the Court may be hearing

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other matters using the same conference line, the parties should wait to state their

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appearances until this case is called and their appearances are requested. All

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background noise should be kept to a minimum.

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3. Plaintiff shall serve and file a pretrial statement, as described in this order, on or

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before October 18, 2021.
4. Defendants shall serve and file a pretrial statement, as described in this order, on or

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before November 8, 2021.
5. In addition to electronically filing a pretrial statement, Defendants shall e-mail the

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pretrial statement to [e-mail].
6. If Plaintiff intends to call incarcerated witnesses at trial, he shall file a motion for

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attendance of incarcerated witnesses, as described in this order, on or before October

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18, 2021.

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7. The opposition to a motion for the attendance of incarcerated witnesses, if any, shall

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be filed on or before November 8, 2021.
8. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse to

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testify voluntarily, Plaintiff must notify the Court in writing of their names and

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locations on or before October 18, 2021, and he must submit the money orders, as

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described in this order, to the Court on or before November 8, 2021.

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9. The Clerk’s Office shall send Plaintiff a copy of Local Rule 281.

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IT IS SO ORDERED.
Dated:

March 10, 2021

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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