Garraway v. Ciufo et al

Filing 138

ORDER CONTINUING TELEPHONIC TRIAL CONFIRMATION HEARING and SETTING Related Deadlines, signed by Magistrate Judge Gary S. Austin on 8/4/2022. (Filing Deadline: 9/5/2022, Replies due by 10/5/2022, Telephonic Trial Confirmation Hearing set for 10/17/2022 at 01:30 PM in Courtroom 5 (DAD) before District Judge Dale A. Drozd)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MITCHELL GARRAWAY,

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Plaintiff,
vs.
JACQUILINE CIUFO, et al.,

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Defendants.

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1:17-cv-00533-DAD-GSA-PC
ORDER CONTINUING TELEPHONIC
TRIAL CONFIRMATION HEARING AND
SETTING RELATED DEADLINES
From: Sept. 26, 2022 at 1:30 p.m.
To:

Oct. 17, 2022 at 1:30 p.m.
Courtroom 5 (DAD)

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Plaintiff’s Pretrial Statement Due:

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Defendants’ Pretrial Statement Due: 10/5/22

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ORDER DIRECTING CLERK TO SEND
PLAINTIFF A COPY OF LOCAL RULE 281

9/5/22

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Jury Trial:

TO BE SCHEDULED

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PLEASE TAKE NOTICE

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1.

The telephonic trial confirmation (TTCH) hearing scheduled for September 26,
2022 at 1:30 p.m. in this action is CONTINUED TO:

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October 17, 2022 at 1:30 p.m.

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Before District Judge Dale A. Drozd

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In Courtroom 5

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2.

The parties shall appear at the TTCH with each party connecting remotely either

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via Zoom video conference or Zoom telephone number. The parties will be

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provided with the Zoom ID and password by Judge Drozd’s Courtroom Deputy

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prior to the conference. The Zoom ID number and password are confidential and

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are not to be shared. Appropriate court attire is required.

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3.

Counsel for Defendants is required to contact Plaintiff’s institution to arrange for

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Plaintiff’s participation at the TTCH. Plaintiff is a federal prisoner proceeding

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pro se and in forma pauperis with this civil rights action pursuant to Bivens vs.

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Six Unknown Agents, 403 U.S. 388 (1971).

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This case now proceeds with Plaintiff’s original Complaint filed on April 17, 2017,

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against defendants Jacqueline Ciufo (Unit Manager), K. Miller (Corrections Officer), and

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Lieutenant J. Zaragoza (collectively, “Defendants”), for failure to protect Plaintiff in violation of

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the Eighth Amendment. (ECF No. 1.)

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On November 27, 2018, the court issued a Discovery and Scheduling Order establishing

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deadlines for the parties, including a discovery deadline of May 27, 2019, and a dispositive

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motion filing deadline of July 27, 2019. (ECF No. 26.) All of the deadlines have now expired,

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and no motions are pending. On May 25, 2021 at 9:30 a.m., a settlement conference was held

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before Magistrate Judge Stanley A. Boone, but the case did not settle. (ECF No. 131.) Therefore,

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pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the court will, by this order, set

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a further schedule for this litigation.

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The parties are required to file pretrial statements in accordance with the schedule set

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forth herein. In addition to the matters already required to be addressed in the pretrial statement

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in accordance with Local Rule 281, Plaintiff will be required to make a particularized showing

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in order to obtain the attendance of witnesses. The procedures and requirements for making such

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a showing are outlined in detail below. Plaintiff is advised that failure to comply with the

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procedures set forth below may result in the preclusion of any and all witnesses named in

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his pretrial statement.

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

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

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trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to

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produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or

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witness testimony.

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procedures to ensure that the witnesses will be at the trial and available to testify.

If Plaintiff wants to call witnesses to testify, he must follow certain

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1.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to

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Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give

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testimony cannot come to court unless this court orders the warden or other custodian to permit

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the witness to be transported to court. This court will not issue such an order unless it is satisfied

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that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual

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knowledge of relevant facts.

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A party intending to introduce the testimony of incarcerated witnesses who have agreed

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voluntarily to attend the trial must serve and file concurrent with the pretrial statement a written

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motion for a court order requiring that such witnesses be brought to court at the time of trial. The

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motion must: (1) state the name, address, and prison or state hospital identification number of

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each such witness; and (2) be accompanied by declarations showing that each witness is willing

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to testify and that each witness has actual knowledge of relevant facts. The motion should be

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entitled “Motion for Attendance of Incarcerated Witnesses.”

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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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himself can swear by declaration under penalty of perjury that the prospective witness has

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informed the party that he or she is willing to testify voluntarily without being subpoenaed, in

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which declaration the party must state when and where the prospective witness informed the

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party of this willingness; or (2) the party can serve and file a declaration, signed under penalty of

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perjury by the prospective witness, in which the witness states that he or she is willing to testify

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without being subpoenaed.

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

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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 (i.e., 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 may

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swear to the cellmate’s ability to testify), the party himself 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. Whether

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

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

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

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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 must be brought to court. Subsequently, the court will

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issue the order necessary to cause the witness’s custodian to bring the witness to court.

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Motions for the attendance of incarcerated witnesses, if any, must be filed on or

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before September 5, 2022. Oppositions, if any, must be filed on or before October 5, 2022.

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2.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who

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refuse to testify voluntarily, the party should submit with his pretrial statement a motion for the

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attendance of such witnesses. Such motion should be in the form described above. In addition,

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

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voluntarily.

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3.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to

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Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated

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witness’s voluntary attendance to notify the witness of the time and date of trial. No action need

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be sought or obtained from the court.

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4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse

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to Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to

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testify voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition,

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the party seeking the witness’s presence must tender an appropriate sum of money for the witness.

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Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness

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fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821.

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If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must first notify the court in writing of the name and

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location of each unincarcerated witness. The court will calculate the travel expense for each

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

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witness, submit a money order made payable to the witness for the full amount of the witness’s

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travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the

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unincarcerated witness by the United States Marshal unless the money order is tendered to the

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court. Because no statute authorizes the use of public funds for these expenses in civil cases, the

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tendering of witness fees and travel expenses is required even if the party was granted leave to

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proceed in forma pauperis.

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If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must submit the money orders to the court no later

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than October 5, 2022. In order to ensure timely submission of the money orders, Plaintiff must

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notify the court of the names and locations of his witnesses, in compliance with step one, no

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later than September 5, 2022.

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The parties are advised that failure to file pretrial statements as required by this order may

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result in the imposition of appropriate sanctions, which may include dismissal of the action or

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entry of default.

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The dates set in this order are considered to be firm and will not be modified absent a

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showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of

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the civil case docket, this Court disfavors requests to modify established dates.

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Accordingly, the court HEREBY ORDERS as follows:

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1.

The telephonic trial confirmation hearing before the Honorable Dale A. Drozd,

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scheduled for September 26, 2022 at 1:30 p.m. is continued to October 17, 2022

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at 1:30 p.m. in Courtroom 5;

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2.

The jury trial for this case shall be scheduled in due course;

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3.

Counsel for Defendants is required to arrange for the participation of Plaintiff in

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the Telephonic Trial Confirmation Hearing;
4.

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Plaintiff shall serve and file a pretrial statement as described in this order on or
before September 5, 2022.

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Defendants shall serve and file a pretrial statement as described in this order on
or before October 5, 2022;

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6.

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In addition to electronically filing a pretrial statement, Defendants shall e-mail the
pretrial statement to: [e-mail];

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If Plaintiff intends to call incarcerated witnesses at time of trial, Plaintiff shall

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serve and file a motion for attendance of incarcerated witnesses as described in

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this order on or before September 5, 2022;

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8.

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shall be filed on or before October 5, 2022;
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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse
to testify voluntarily, Plaintiff must submit the money orders, as described in

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The opposition to the motion for the attendance of incarcerated witnesses, if any,

subsection 4 of this order, to the court on or before October 5, 2022; and
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The Clerk’s Office shall send Plaintiff a copy of Local Rule 281.

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IT IS SO ORDERED.
Dated:

August 4, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE