Walker v. King et al

Filing 139

ORDER DENYING 133 Plaintiff's Motion for Attendance of Incarcerated Witnesses, Without Prejudice signed by Magistrate Judge Erica P. Grosjean on 7/10/2020. Renewed Motion due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGER WALKER,
Plaintiff,

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v.

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Case No. 1:16-cv-01665-AWI-EPG (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR ATTENDANCE OF
INCARCERATED WITNESSES,
WITHOUT PREJUDICE

TIM POOLE, et al.,
Defendants.

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I.

(ECF No. 133)

BACKGROUND
Roger Walker (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds “against

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defendants Saloum, Poole, Perryman, Davis, and Nicks on Plaintiff’s claim for failure to

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protect in violation of the Fourteenth Amendment.” (ECF No. 35, p. 2).1

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On May 4, 2020, Plaintiff filed a motion for attendance of confined witnesses. (ECF

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No. 133). On May 6, 2020, Defendants filed their opposition to the motion. (ECF No. 134).

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On May 27, 2020, Plaintiff filed a reply. (ECF No. 135).
As Plaintiff did not file the required declarations with his motion, Plaintiff’s motion will

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be denied, without prejudice.

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The Court recently recommended that summary judgment be granted in favor of defendants Davis,
Nicks, Perryman, and Poole. (ECF No. 137).
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II.

DISCUSSION
In the scheduling order, the Court informed Plaintiff that “[a] party intending to

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introduce the testimony of confined witnesses who have agreed to voluntarily attend the trial

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must serve and file a written motion for a court order requiring that such witnesses be brought

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

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

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that each witness is willing to testify and that each witness has actual knowledge of relevant

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facts.” (ECF No. 77, p. 6).

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“The prospective witness’s actual knowledge of relevant facts can be shown in one of

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

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eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell

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and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff

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may swear to the cellmate’s ability to testify), the party can swear by declaration under penalty

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of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file

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

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describes the relevant facts to which the prospective witness was an eye or ear witness.

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Whether the declaration is made by the party or by the prospective witness, it must be specific

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about the incident, when and where it occurred, who was present, and how the prospective

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witness happened to be in a position to see or to hear what occurred at the time it occurred.”

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(Id. at 7).

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The same requirement for a declaration showing that each witness has actual knowledge

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of relevant facts applies to motions for attendance of confined witnesses who have not agreed

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to testify voluntarily. (Id.).

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Here, Defendants are correct that Plaintiff did not file the required declarations. In fact,

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Plaintiff did not even attempt to show that each prospective witness has actual knowledge of

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relevant facts. Instead, Plaintiff listed twelve witnesses he wants brought to trial. (ECF No.

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133, p. 2). As Plaintiff failed to include the required declarations with his motion, Plaintiff’s

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motion will be denied, without prejudice to Plaintiff refiling it with the required declarations.
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III.

ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

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attendance of confined witnesses is DENIED, without prejudice. Plaintiff has thirty days2 from

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the date of service of this order to refile his motion with the required declarations.3

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IT IS SO ORDERED.
Dated:

July 10, 2020

/s/
UNITED STATES MAGISTRATE JUDGE

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If Plaintiff needs additional time to gather the required declarations, he may file a motion for an
extension of time.
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The declaration must be subscribed by the declarant “as true under penalty of perjury, and dated, in
substantially the following form: … ‘I declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date). (Signature).’” 28 U.S.C. § 1746(2).
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