Heilman v. Vokufka et al

Filing 96

ORDER DIRECTING the FILING of PRETRIAL STATEMENTS signed by Magistrate Judge Edmund F. Brennan on 7/10/2012 ORDERING that within 30 days, plaintiff shall file and serve a pretrial statement and any motions to obtain trial witnesses; defendant shall f ile a pretrial statement not later than 30 days after the filing of plaintiff's statement; the pretrial conference will be conducted on the file only, without appearance by either party; and the date for jury trial before the assigned district judge will be set in the pretrial order.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS JOHN HEILMAN,
Plaintiff,

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No. CIV S-08-2788 KJM EFB P

vs.
VOJKULFKA, et al.,

ORDER DIRECTING THE FILING OF
PRETRIAL STATEMENTS

Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The court has determined that this action will not be referred to the Prisoner

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Settlement Program at this time. Therefore, the court will direct the parties to file pretrial

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statements in accordance with Local Rule 281. Plaintiff is hereby cautioned that failure to

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

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named in his pretrial statement.

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At trial, plaintiff must be prepared to introduce evidence to prove each of the alleged

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facts in support of his claims. Trial evidence generally takes the form of: (a) exhibits; and (b)

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witness testimony. It is plaintiff’s responsibility to produce all of the evidence to prove his case,

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whether that evidence is in the form of exhibits or witness testimony. If plaintiff wants to call

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witnesses to testify, he must follow certain procedures to ensure that the witnesses will be at the

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trial and available to testify.
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The following procedures apply for calling witnesses:

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I.

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Obtaining Attendance of an Incarcerated Witness Who Intends to Testify
Voluntarily

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A witness who is willing to testify without the compulsion of a subpoena, but who is

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imprisoned or incarcerated, cannot appear to testify without a court order directing the custodian

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to produce him at the time of trial. The court will issue such an order only upon a showing that

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the witness has agreed to testify voluntarily and has actual knowledge of relevant facts.

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Therefore, a party intending to introduce testimony from such a witness must file with his
pretrial statement a motion for an order directing the witness’s custodian to produce the witness
for trial. The motion must:

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1. Identify the witness by name, California Department of Corrections and Rehabilitation
number, and address;

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2. Include affidavits showing that the witness intends to testify voluntarily. This
intention can be shown as follows:

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A. The party can swear by affidavit that the witness has communicated to him an

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intention to testify voluntarily. The affidavit must include a statement of when and where the

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prospective witness informed the party of this willingness; or

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B. The witness can swear by affidavit that he is willing to testify without the
compulsion of subpoena.

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3. Include affidavits showing each witness has actual knowledge of relevant facts. The
witness’s knowledge can be shown as follows:

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A. The party can swear that he knows the witness saw or heard relevant facts.

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For example, if something occurred in plaintiff’s cell and plaintiff saw that a cell-mate was

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present and observed the incident, then plaintiff may swear to the cell-mate’s ability to testify;

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or,

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B. The witness can swear to the relevant facts he observed.
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Any such affidavit must describe the incident, state when it occurred, where it occurred,
who was present, and how the witness was in a position to see or to hear what occurred.
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' custodian to bring the witness to court.

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II.

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Obtaining Attendance of an Incarcerated Witness Who Refuses to Testify
Voluntarily

If a party seeks to present testimony of an imprisoned or incarcerated witness who does
not intend to testify voluntarily, the party must with his pretrial statement file a motion for an

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order directing that witness to appear. Such a motion must comply with the requirements

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explained above but the movant must demonstrate that any such witness does not intend to

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testify voluntarily.

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III.

Voluntarily

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Obtaining Attendance of an Unincarcerated Witness Who Agrees to Testify

A party need not obtain an order to produce an unincarcerated witness who intends to
testify voluntarily. However, the party is responsible for ensuring attendance of such a witness.
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Obtaining Attendance of Unincarcerated Witnesses Who Refuse to Testify
Voluntarily

To obtain the presence of a witness who is at liberty and who refuses to testify

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voluntarily, the party who intends to present that witness’s testimony, and who proceeds in

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forma pauperis, must complete and submit to the United States Marshal a subpoena for service

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upon the witness. Blank subpoena forms may be obtained from the Clerk of the Court. Along

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with a completed subpoena, the party must also submit a copy of the court’s order granting that

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party in forma pauperis status. Additionally, the party must tender a money order payable to the

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witness in the amount of the daily witness fee, $40.00, plus the witness’s travel expenses. The

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party must also notify the court that these materials have been submitted to the United States
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Marshal not earlier than four weeks and not later than two weeks before trial. A subpoena will

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not be served by the United States Marshal upon an unincarcerated witness unless the subpoena

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is accompanied by the materials listed above. No statute authorizes the use of public funds for

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expenses in civil cases and so even a plaintiff proceeding in forma pauperis must tender any

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witness fees and travel expenses.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Within thirty days of the date of this order, plaintiff shall file and serve a pretrial

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statement and any motions necessary to obtain the attendance of witnesses at trial. Plaintiff is

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advised that failure to file a pretrial statement in accordance with this order may result in the

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imposition of sanctions, including dismissal of this action.

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2. Defendant shall file a pretrial statement not later than thirty days after the filing of
plaintiff’s statement.
3. Pretrial conference (as described in Local Rule 282) will be conducted on the file

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only, without appearance by either party.
4. The date for jury trial before the assigned district judge will be set in the pretrial

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order.

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DATED: July 10, 2012.

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