Randall v. Kimura, et al

Filing 62

ORDER signed by Magistrate Judge John F. Moulds on 3/30/12; IT IS HEREBY ORDERED that: 1. The parties may conduct discovery until July 20, 2012. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuan t to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date. 2. All pretrial motions, except motions to compel discovery, shall be filed on or before October 12, 2012. Motions shall be briefed in accordance with paragraph 7 of this courts order filed November 16, 2010. 3. Pretrial conference and trial dates will be set, as appropriate, following adjudication of any dispositive motion, or the expiration of time for filing such a motion. 4. In all other respects, the provisions of the discovery and scheduling order filed in this action on August 31, 2011 remain in full force and effect.(Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERALD RANDALL,

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Plaintiff,

No. 2:10-cv-0052 JAM JFM (PC)

vs.
T. KIMURA, et al.,

DISCOVERY AND

Defendants.

REVISED SCHEDULING ORDER
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Defendant Wright previously answered the first amended complaint and defendant

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Swingle has now answered said pleading. Pursuant to this court’s February 8, 2012 order, and

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good cause appearing, the court will set a revised schedule for this litigation.

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Should this matter proceed to trial the court will, by subsequent order, require the

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parties to file pretrial statements. In addition to the matters required to be addressed in the

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pretrial statement in accordance with Local Rule 281, plaintiff will be required to make a

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particularized showing in the pretrial statement in order to obtain the attendance of witnesses at

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trial. Plaintiff is again advised that failure to comply with the procedures set forth below may

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result in the preclusion of any and all witnesses named in the pretrial statement.

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At the trial of this case, the plaintiff must be prepared to introduce evidence to
prove each of the alleged facts that support the claims raised in the lawsuit. In general, there are
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two kinds of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is the plaintiff’s

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responsibility to produce all of the evidence to prove the claims, whether that evidence is in the

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form of exhibits or witness testimony. If the plaintiff wants to call witnesses to testify, he must

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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

An incarcerated witness who agrees voluntarily to attend trial to give testimony

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cannot come to court unless this court orders the warden or other custodian to permit the witness

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to be 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;
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

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incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file a

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written motion for a court order requiring that such witnesses be brought to court at the time of

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trial. The motion must:

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1. State the name, CDC Identification number, and address of each such

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witness;

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and

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

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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:

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

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informed the party that he is willing to testify voluntarily without being

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subpoenaed. The party must state in the affidavit when and where the

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prospective witness informed the party of this willingness; or
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2. The party can serve and file an affidavit sworn to by the prospective

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witness, in which the witness states that he or she is willing to testify

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without being 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

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firsthand knowledge that the prospective witness was an eyewitness or an

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ear-witness to the relevant facts. For example, if an incident occurred in

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the plaintiff's cell and, at the time, the plaintiff saw that a cellmate was

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present and observed the incident, the plaintiff may swear to the cellmate's

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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

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witness in which the witness describes the relevant facts to which the

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prospective witness was an eye- or ear-witness. Whether the affidavit is

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made by the plaintiff or by the prospective witness, it must be specific

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about what the incident was, when and where it occurred, who was

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present, and how the prospective witness happened to be in a position to

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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

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witnesses, specifying which prospective witnesses must be brought to court. Subsequently, the

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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

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

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

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

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must 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

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

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

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or 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

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

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

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prepare and submit to the United States Marshal a subpoena for service by the Marshal upon the

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witness. (Blank subpoena forms may be obtained from the Clerk of the Court.) Also, the party

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seeking the witness' presence must tender an appropriate sum of money to the witness through

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

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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

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

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the witness for the full amount of the witness' travel expenses plus the daily witness fee of

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$40.00, and a copy of the court's order granting plaintiff in forma pauperis status. Because no

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statute authorizes the use of public funds for these expenses in civil cases, the tendering of

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witness fees and travel expenses is required even if the party was granted leave to proceed in

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forma pauperis.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The parties may conduct discovery until July 20, 2012. Any motions necessary

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to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R.

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Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date.

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2. All pretrial motions, except motions to compel discovery, shall be filed on or

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before October 12, 2012. Motions shall be briefed in accordance with paragraph 7 of this court’s

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order filed November 16, 2010.

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3. Pretrial conference and trial dates will be set, as appropriate, following

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adjudication of any dispositive motion, or the expiration of time for filing such a motion.

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4. In all other respects, the provisions of the discovery and scheduling order filed

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in this action on August 31, 2011 remain in full force and effect.

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DATED: March 30, 2012.

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