Elseth v. Speirs, et al

Filing 195

ORDER signed by Judge Garland E. Burrell, Jr on 11/18/11 GRANTING-IN-PART and DENYING-IN-PART 190 Plaintiff's Motion. (Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN ELSETH, by his guardians
ad litem, Roger Elseth and
Partricia Ann Elseth,
Plaintiff,

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v.

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Deputy Probation Officer Jeff
Elorduy, individually,

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2:08-cv-2890-GEB-CKD
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION*

Defendant.
________________________________

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Plaintiff moves for an order amending the October 7, 2011

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order, in which Plaintiff’s counsel was sanctioned, and required to pay

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the sanction to Defendant. Plaintiff requests that payment of this

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sanction be delayed until “entry of judgment.” (Mot. 3:12-13.)

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Defendant opposes this request, arguing that a delay in

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payment would be “manifestly inequitable given that Defendant has

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already incurred the fees and costs Plaintiff’s counsel was ordered to

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reimburse.” (Opp’n 4:2-3.) Defendant requests that Plaintiff’s counsel

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be ordered to pay the sanction to Defendant by December 31, 2011.

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However, trial is scheduled to commence on February 28, 2012,

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and since the trial is scheduled close in time to when Defendant seeks

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payment, Plaintiff’s counsel’s request regarding specifying that payment

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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is due after judgment is entered is GRANTED. Therefore, payment of the

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sanction is due within ten (10) days of the entry of final judgment in

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this case.

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Plaintiff also seeks a writ of habeas corpus ad testificandum

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which would compel the United States Marshal transport Plaintiff from

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wherever Plaintiff is incarcerated in state prison to this court for

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trial, or alternatively, that an order issue authorizing the use of

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videoconferencing for Plaintiff’s testimony at trial.

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However, independent research was conducted concerning the

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procedures

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Plaintiff’s representation that the Untied States Marshal refused to

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enter into an agreement to transport Plaintiff. The research indicates

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that “[t]he custodian of the prisoner is responsible for transporting

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and producing state or local prisoners in a federal civil case” not the

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United States Marshals Service. U.S. Marshals Service: Writs of Habeas

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Corpus

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http://www.usmarshals.gov/prisoner/writs.htm

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2011). Therefore, Plaintiff has not shown that the United States Marshal

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will be involved in his transport to trial in this case.

for

&

transporting

Special

prisoners

Requests

for

for

civil

trials

Production,
(last

in

light

USMarshals.gov,
visited

Nov.

18,

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Further, Plaintiff’s request for “an order of this court, and

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a writ of habeas corpus ad testificandum” does not include sufficient

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information for issuance of the writ, and is therefore DENIED.

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Plaintiff

seeks

in

the

alternative

an

order

authorizing

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Plaintiff to testify by contemporaneous transmission under Federal Rule

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of

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Plaintiff has not shown that “good cause” and “compelling circumstances”

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exist, which is required under Rule 43(a).

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satisfy the showing required under Rule 43(a); therefore, this request

Civil

Procedure

43(a).

Defendants

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oppose

this

request

arguing

Plaintiff has failed to

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is also DENIED.

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Dated:

November 18, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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