Jones et al v. DeForest

Filing 94

ORDER denying 85 Motion to subpoena witnesses signed by Magistrate Judge Carolyn K. Delaney on 05/06/13. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MALIK JONES,

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Plaintiff,

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No. 2:08-cv-2607 MCE CKD

vs.
J. MCGUIRE, et al.,

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Defendants.

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ORDER
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Plaintiff, a state prisoner, proceeds pro se with a civil rights action filed pursuant

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to 42 U.S.C. § 1983. Plaintiff has filed a motion for order to subpoena eight inmate witnesses for

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trial. (Dkt. No. 85.) Defendant opposes the motion, stating that plaintiff should not be allowed

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to call these inmate witnesses because he failed to disclose their identity in response to

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interrogatories propounded on plaintiff by defendant. (Dkt. No. 86.)

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A motion for subpoena is not the proper method for plaintiff to attempt to secure

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the attendance of inmate witnesses at trial. Rather, the proper procedure for a pro se incarcerated

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plaintiff is to seek a writ of habeas corpus ad testificandum concurrently with the filing of the

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plaintiff’s pre-trial statement. As plaintiff was notified in the January 11, 2011 scheduling order

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with regard to securing the attendance of incarcerated witnesses at trial:

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/////
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It is the plaintiff’s responsibility to produce all of the evidence to
prove his case, whether that evidence is in the form of exhibits or
witness testimony. If the plaintiff wants to call witnesses to testify,
he must follow certain procedures to ensure that the witnesses will
be at the trial and available to testify.

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I.

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Procedures for Obtaining Attendance of Incarcerated
Witnesses Who Agree to Testify Voluntarily

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An incarcerated witness who agrees to voluntarily attend trial to
give testimony cannot come to court unless this court orders the
warden or other custodian to permit the witness to be transported to
court. This court will not issue such an order unless it is satisfied
that:

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1.
2.

The prospective witness is willing to attend; and
The prospective witness has actual knowledge of
relevant facts.

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With the pretrial statement, a party intending to introduce the
testimony of incarcerated witnesses who have agreed voluntarily to
attend the trial must serve and file a written motion for a court
order requiring that such witnesses be brought to court at the time
of the trial. The motion must:

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1.
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2.
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State the name, CDC Identification number, and
address of each such witness; and
Be accompanied by affidavits showing that each
witness is willing to testify and that each witness
has actual knowledge of relevant facts.

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The willingness of the prospective witness can be shown in one of
two ways:
1.

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2.
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The party intending to introduce the testimony can
swear by affidavit that the prospective witness has
informed the party that he or she is willing to testify
voluntarily without being subpoenaed. The party
must state in the affidavit when and where the
prospective witness informed the party of this
willingness; or
The party can serve and file an affidavit sworn to by
the prospective witness, in which the witness states
that he or she is willing to testify without being
subpoenaed.

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

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1.
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The party intending to introduce the testimony can
swear by affidavit that the prospective witness has
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actual knowledge. However, this can be done only
if the party has actual firsthand knowledge that the
prospective witness was an eyewitness or an
ear-witness to the relevant facts. For example, if an
incident occurred in the plaintiff's cell and, at the
time, the plaintiff saw that a cellmate was present
and observed the incident, the plaintiff may swear to
the cellmate’s ability to testify.

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Or

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2.

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The party can serve and file an affidavit sworn to by
the prospective witness in which the witness
describes the relevant facts to which the prospective
witness was an eye- or ear-witness. Whether the
affidavit is made by the plaintiff or by the
prospective witness, it must be specific about what
the incident was, when and where it occurred, who
was present, and how the prospective witness
happened to be in a position to see or to hear what
occurred at the time it occurred. The court will
review and rule on the motion for attendance of
incarcerated witnesses, specifying which
prospective witnesses must be brought to court.
Subsequently, the court will issue the order
necessary to cause the witness’ custodian to bring
the witness to court.

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II.
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Procedures for Obtaining Attendance of Incarcerated
Witnesses Who Refuse to Testify Voluntarily

If a party seeks to obtain the attendance of incarcerated witnesses
who refuse to testify voluntarily, the party should submit with his
pretrial statement a motion for the attendance of such witnesses.
Such motion should be in the form described above. In addition,
the party must indicate in the motion that the incarcerated
witnesses are not willing to testify voluntarily.

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(Dkt. No. 53 at 2-4.)

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In determining whether to issue a writ of habeas corpus ad testificandum to bring

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a state prisoner witness into federal court, a district court must exercise its discretion based upon

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consideration of such factors as whether the prisoner’s presence will substantially further the

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resolution of the case, the security risks presented by the prisoner’s presence, the expense of the

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prisoner’s transportation and safekeeping, and whether the suit can be stayed until the prisoner is

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released without prejudice to the cause asserted. See Wiggins v. Alameda County, 717 F.2d 466,
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468 at n.1 (9th Cir. 1995), cert. denied, 465 U.S. 1070 (1984) (citing Ballard v. Spradley, 557

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F.2d 476, 480 (5th Cir. 1977)).

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Plaintiff has failed to comply with the procedures required for seeking writs of

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habeas corpus ad testificandum for his desired inmate witnesses. The court is unable to exercise

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discretion based on consideration of the factors discussed in Wiggins. Accordingly, the motion

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to subpoena witnesses will be denied.

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In accordance with the above, IT IS HEREBY ORDERED THAT plaintiff’s
motion to subpoena witnesses (Dkt. No. 85) is DENIED.
Dated: May 6, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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jone.2607.subpoena

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