Norwood v Nanganama, et al.,

Filing 139

ORDER signed by Magistrate Judge Allison Claire on 05/18/15 ordering discovery and law and motion is closed. (Settlement Conference set for 8/6/2015 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. Jury Trial set for 1/25/2 016 at 08:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez.) The parties are directed to submit confidential settlement conference statements vial email to [e-mail] or by mail to chambers 7 days prior to the settlement conference. A pretrial conference is set in this case for 10/19/15 before the Magistrate Judge to be conducted on the file only without appearance by either party. (cc: EFB). (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY NORWOOD,

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No. 2:09-cv-2929 JAM AC P

Plaintiff,
v.

ORDER

NANGANAMA, et al.,

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Defendants.

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On April 22, 2015, this court ordered the parties to advise whether they agreed to the

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undersigned serving as the settlement judge in this case. ECF No. 136. Since defendant has not

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waived the disqualification of the undersigned (ECF No. 137), another magistrate judge has been

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randomly assigned for purposes of conducting a settlement conference. The settlement

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conference will be set to occur at the U. S. District Court, 501 I Street, Sacramento, California

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95814 in Courtroom 8 before Magistrate Judge Edmund F. Brennan on August 6, 2015, at 10:00

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a.m. A separate order and writ of habeas corpus ad testificandum will issue concurrently with

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this order.

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Although this case is currently scheduled for a settlement conference, the court will

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proceed with scheduling a trial to prevent delay in the event the settlement conference is

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unsuccessful. The parties will be required to file pretrial statements in accordance with the

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schedule set forth below. As set forth in this court’s initial scheduling order, in addition to the
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matters already required to be addressed in the pretrial statement in accordance with Local Rule

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281, plaintiff will be required to make a particularized showing in the pretrial statement in order

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to obtain the attendance of witnesses. 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 the

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pretrial statement.

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

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of 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 the plaintiff’s responsibility

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

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or witness testimony. If the plaintiff wants to call witnesses to testify, plaintiff must follow

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

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I.

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

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An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot

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come to court unless this court orders the warden or other custodian to permit the witness to be

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transported to court. This court will not issue such an order unless it is satisfied that:

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1. The prospective witness is willing to attend;

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and

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2. 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

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witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for

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

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The motion must:

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1. State the name and address of each such witness;

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and

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2. Be accompanied by affidavits showing that each witness is willing to testify

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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:
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1. The party can swear by affidavit that the prospective witness has informed the

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party that he or she is willing to testify voluntarily without being subpoenaed. The

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party must state in the affidavit when and where the prospective witness informed

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the party of this willingness;

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Or

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2. The party can serve and file an affidavit sworn to by the prospective witness, in

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which the witness states that he or she is willing to testify without being

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subpoenaed.

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

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1. The party can swear by affidavit that the prospective witness has actual

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knowledge. However, this can be done only if the party has actual firsthand

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knowledge that the prospective witness was an eyewitness or an ear-witness to the

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relevant facts. For example, if an incident occurred in the plaintiff’s cell and, at

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the time, the plaintiff saw that a cellmate was present and observed the incident,

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the plaintiff may swear to the cellmate’s ability to testify.

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Or

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2. The party can serve and file an affidavit sworn to by the prospective witness in

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which the witness describes the relevant facts to which the prospective witness

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was an eye- or ear-witness. Whether the affidavit is made by the plaintiff or by the

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prospective witness, it must be specific about what the incident was, when and

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where it occurred, who was present, and how the prospective witness happened to

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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’ 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

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If a party seeks to obtain the attendance of incarcerated witnesses who refuse to testify

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voluntarily, the party should submit with the pretrial statement a motion for the attendance of

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such witnesses. Such motion should be in the form described above. In addition, the party must

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indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily.

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III.

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

It is the responsibility of the party who has secured an unincarcerated witness’ voluntary

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attendance to notify the witness of the time and date of trial. No action need be sought or

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obtained from the court.

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IV.

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Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to
Testify Voluntarily

If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, not

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earlier than four weeks and not later than two weeks before trial, the party must prepare and

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submit to the United States Marshal a subpoena for service by the Marshal upon the witness.

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Also, the party seeking the witness’ presence must tender an appropriate sum of money to the

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witness through the United States Marshal. In the case of an unincarcerated witness, the

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appropriate sum of money is the daily witness fee of $40.00 plus the witness’ travel expenses.

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A subpoena will not be served by the United States Marshal upon an unincarcerated

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witness unless the subpoena is accompanied by a money order made payable to the witness for

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the full amount of the witness’ travel expenses plus the daily witness fee of $40.00. As noted

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earlier, 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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Good cause appearing, pursuant to Fed. R. Civ. P. 16(b), THIS COURT ORDERS AS
FOLLOWS:
1. Discovery is closed.
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2. Law and motion is closed.

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3. The parties are hereby notified that a Settlement Conference has been SET for August

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6, 2015, at 10:00 a.m. in Courtroom 8 before Magistrate Judge Edmund F. Brennan. The parties

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are directed to submit confidential settlement conference statements via e-mail

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([e-mail]) or by mail to chambers seven (7) days prior to the settlement

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conference. Any settlement statements sent to the court by mail should indicate on the envelope

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and on the face of the statement that it is a confidential communication to Magistrate Judge

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Edmund F. Brennan. Such statements are neither to be filed with the clerk nor served on

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opposing counsel. The parties may agree, or not, to serve each other with the settlement

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statements. Each party is reminded of the requirement that it be represented in person at the

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settlement conference by a person able to dispose of the case or fully authorized to settle the

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matter at the settlement conference on any terms. See Local Rule 270.

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4. If the settlement conference is unsuccessful, plaintiff shall file and serve his pretrial

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statement and any motions necessary to obtain the attendance of witnesses at trial on or before

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September 28, 2015. Defendants shall file their pretrial statement on or before October 12, 2015.

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The parties are advised that failure to file a pretrial statement may result in the imposition of

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sanctions, including dismissal of this action.

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5. Pretrial conference (as described in Local Rule 282) is set in this case for October 19,

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2015, before the magistrate judge. The pretrial conference shall be conducted on the file only,

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without appearance by either party.

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6. This matter is set for jury trial before the Honorable John A. Mendez on January 25,

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2016, at 8:30 a.m. in Courtroom 6.

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DATED: May 18, 2015

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