Garraway v. Ciufo et al

Filing 155

ORDER GRANTING 140 Motion for Unincarcerated Witnesses, In Part; ORDER DENYING Motion for Appointment of Investigator; ORDER re 153 Plaintiff's Motion for Extension of Time, signed by Magistrate Judge Gary S. Austin on 11/8/2022. Deadline to Provide Names and Addresses of Unincarcerated Witnesses: 4/7/2023. Deadline to Submit Money Orders for Unincarcerated Witnesses: 5/8/2023. (Rivera, O)

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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,

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vs.
JACQUILINE CIUFO, et al.,

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Defendants.

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1:17-cv-00533-ADA-GSA (PC)
ORDER GRANTING MOTION FOR
UNINCARCERATED WITNESSES, IN
PART
(ECF No. 140.)
ORDER DENYING MOTION FOR
APPOINTMENT OF INVESTIGATOR

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ORDER RE PLAINTIFF’S MOTION
FOR EXTENSION OF TIME

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(ECF No. 153.)

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DEADLINE TO PROVIDE NAMES
AND ADDRESSES OF
UNINCARCERATED WITNESSES:
April 7, 2023

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DEADLINE TO SUBMIT MONEY
ORDERS FOR UNINCARCERATED
WITNESSES: May 8, 2023

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I.

BACKGROUND

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights

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action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now proceeds

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with Plaintiff’s original Complaint filed on April 17, 2017, against defendants Jacqueline Ciufo

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(Unit Manager), K. Miller (Corrections Officer), and Lieutenant J. Zaragoza (collectively,
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“Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment. (ECF No.

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1.)

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This case is scheduled for a Pretrial Conference on May 22, 2023 at 1:30 p.m. and Jury
Trial on August 1, 2023 at 8:30 a.m., before the Honorable Ana de Alba.

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On September 1, 2022, Plaintiff filed a motion for the attendance of unincarcerated

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witnesses who refuse to testify voluntarily. (ECF No. 140.) On October 24, 2022, Plaintiff

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notified the Court of names and addresses of his prospective unincarcerated witnesses. (ECF No.

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152.) On October 28, 2022, Plaintiff filed a motion for extension of time to provide addresses

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and money orders for service of subpoenas. (ECF No. 153.) Plaintiff also requested the

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appointment of an investigator. (Id.)

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II.

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MOTION FOR ATTENDANCE OF UNINCARCERATED WITNESSES
Plaintiff requests attendance at trial of three Bureau of Prisons personnel witnesses who

refuse to testify:
(1)

La Ronica Gardea, Special Investigative Service, who was formerly employed

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at the U.S. Penitentiary-Atwater; Gardea acted in the capacity of Special

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Investigative Staff at USP-Atwater, charged with conducting interviews; Plaintiff

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is unable to obtain a current address for this witness;

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(2)

Corrections Officer FNU Ciprian, who is currently employed at the U.S.

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Penitentiary-Atwater, P.O. Box 019001, Atwater, California; C/O Ciprian made

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attempts to move Plaintiff away from Plaintiff’s assailant but was rebuffed by

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Defendants Miller and Zaragoza; and

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(3)

Stacey Vasquez, Expert Witness, U.S. Penitentiary-Atwater, P.O. Box 019001,
Atwater, California; Vasquez acted as paramedic who treated Plaintiff.

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Plaintiff states that these three witnesses may offer testimony crucial to Plaintiff’s case.

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Discussion

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On May 28, 2021, the Court issued the Second Scheduling Order that instructed Plaintiff

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on the procedures for obtaining the attendance of witnesses. (ECF No. 132.) Plaintiff was

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advised that he must show the prospective witness’s actual knowledge of relevant facts by clearly
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explaining when and where the witness was and what the witness saw, heard, or otherwise knew

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about the events at issue in the complaint. In other words, what can each witness testify to in

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support of Plaintiff’s claims that Defendants failed to protect him from harm?

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Plaintiff alleges in the Complaint that on March 20, 2016, his cell mate cut Plaintiff’s

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nose with a razor. Plaintiff informed Defendants Miller, Ciufo, and Zaragoza about the incident

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and asked to be moved to another cell, but they all refused to assist him. The cell mate had a

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long history of serious assaults in which his victims required hospitalization, and Defendants

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Miller, Ciufo, and Zaragoza were aware of these assaults. On April 2, 2016, the same cell mate

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struck Plaintiff on the left side of his jaw.

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Plaintiff has not provided sufficient information for witness La Ronica Gardea. Plaintiff

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must provide Gardea’s current address and inform the Court of the witness’s actual knowledge

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of relevant facts. The Court shall not grant Plaintiff’s motion to bring Gardea to trial unless

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Plaintiff provides more information.

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A party seeking to compel the attendance of a witness for trial must deposit fees for the

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witness in advance of the Court issuing a witness subpoena. That fee encompasses the $40.00

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daily witness fee plus the costs of the witness’s travel to and from the courthouse. 28 U.S.C. §

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1821.

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http://www.gsa.gov/mileage.

The

current

mileage

reimbursement

rate

is

set

at

$0.625

per

mile.

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It appears that C/O Ciprian and Stacey Vasquez can testify to relevant facts. For these

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two witnesses, the round-trip distance to travel from the federal Penitentiary in Atwater,

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California, to the federal courthouse in Fresno, California is 135 miles. At $0.625 cents per

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mile reimbursement rate, the cost to subpoena these prospective witnesses would be $85.00 plus

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the $40.00 daily witness fee for a total of $125.00. No statute authorizes the use of public funds

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to cover these payments and plaintiff’s in forma pauperis status does not obviate his need to pay

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them. For each witness, Plaintiff must submit a money order made payable to the witness. The

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subpoenas will not be issued absent payment in full.

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II.

MOTION FOR EXTENSION OF TIME

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Plaintiff filed a motion seeking an extension of time to provide names, addresses, and

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money orders for each prospective unincarcerated witness. Due to the dates for the Pretrial

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Conference (May 22, 2023 at 1:30 p.m.) and Jury Trial (August 1, 2023 at 8:30 a.m.) in this case,

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the Court has set a deadline of May 8, 2023 for Plaintiff to submit money orders to the court for

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unincarcerated witnesses.

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information about each witness’s knowledge of relevant facts on or before April 7, 2023. These

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deadlines should allow Plaintiff ample time before the Pretrial Conference to provide the required

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information and money orders.

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III.

(ECF No. 146.)

Plaintiff must provide names, addresses, and

MOTION FOR APPOINTMENT OF INVESTIGATOR

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Plaintiff requests a court-appointed investigator to assist him with finding current

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addresses for prospective witnesses. Plaintiff states that he believes La Ronica Gardea has retired

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from the U.S. Penitentiary in Atwater, but he does not know Gardea’s current address.

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Plaintiff has been granted leave to proceed with this action in forma pauperis pursuant

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to 28 U.S.C. § 1915. (ECF No. 4.) However, the in forma pauperis statute does not authorize the

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expenditure of public funds for investigators. Santos v. Baca, No. 211CV01251KJDNJK, 2014

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WL 12910916, at *2 (D. Nev. Aug. 19, 2014) (citing see 28 U.S.C. § 1915; see also Hadsell v.

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Internal Revenue Service, 107 F.3d 750, 752 (9th Cir. 1997); Dixon v. Ylst, 990 F.2d 478, 480

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(9th Cir. 1993); Brown v. Johnson & Johnson, Inc., Case No. 1:17-cv-01285-AWI-EPF, 2018

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WL 5734531, *2–3 (E.D. Cal. Oct. 31, 2018) (holding that “the Court is without authority to

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appoint an investigator or researcher to assist Plaintiff.”)). Accordingly, Plaintiff's request to

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appoint an investigator shall be denied.

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Plaintiff's instant motion concerns funding, because only litigants who need funding need

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permission to hire a private investigator. Id. The expenditure of public funds on behalf of an

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indigent litigant is proper only when authorized by Congress. Id. (citing Tedder v. Odel, 890

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F.2d 210, 211-12 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct.

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2086, 2089, 48 L.Ed.2d 666 (1976)). The two potential sources of Congressional authorization

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are 28 U.S.C. § 1915 and 18 U.S.C. § 3006A. Id. First, “[t]he in forma pauperis statute, 28
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U.S.C. § 1915, does not authorize the expenditure of funds for a private investigator.” Id.

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(quoting Covarrubias v. Gower, 2014 WL 342548, *1 (N.D. Cal. Jan. 28, 2014) (citing Tedder,

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890 F.2d at 212) (pauper statute does not waive the payment of fees or expenses for an indigent’s

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witnesses). Second, the Criminal Justice Act, 18 U.S.C. § 3006A, does not apply because this is

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a civil, and not a criminal, case. Id. Thus, no Congressional authorization exists for the

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appointment of a private investigator.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for the attendance of unincarcerated witnesses at trial, filed on

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September 1, 2022, is GRANTED in part, as to witnesses C/O Ciprian and

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Stacey Vasquez, and DENIED as to witness La Ronica Gardea;

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2.

Plaintiff’s motion for extension of time, filed on October 28, 2022, is resolved;

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3.

Plaintiff is granted until April 7, 2023 in which to provide the Court with names

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and addresses for prospective unincarcerated witnesses who refuse to testify

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voluntarily, and information about their knowledge of relevant facts for trial;

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Plaintiff is granted until May 8, 2023 in which to submit money orders made out
to each unincarcerated witness for witness fees and transportation costs;

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Plaintiff must submit separate money orders in the amount of $125.00 made out

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to each of the witnesses, C/O Ciprian and Stacey Vasquez, on or before May 8,

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2023, for their witness fees and transportation from the U.S. Penitentiary in

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Atwater, California to the courthouse in Fresno, California; and

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6.

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Plaintiff’s motion for appointment of an interpreter, filed on October 28, 2022, is
DENIED.

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IT IS SO ORDERED.
Dated:

November 8, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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