Turner v. Salinas

Filing 147

ORDER signed by Chief Judge Morrison C. England, Jr on 2/5/2014 DIRECTING the clerk to serve by mail three certified copies of this order on the Warden of Wasco State Prison. The Clerk is further DIRECTED to send a courtesy copy of this order by fax to the Litigation Coordinator. Plaintiff is ORDERED to file an Amended Status Report by 2/18/2014 at 4:00 pm. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY R. TURNER,

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Plaintiff,

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v.

No. 2:10-cv-01848 MCE KJN P

ORDER

WARDEN SALINAS, et al.,

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Defendants.

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Plaintiff Anthony Turner is a state prisoner, proceeding through counsel, with a

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civil rights action pursuant to 42 U.S.C. § 1983. This action is set for trial on February

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24, 2014 at 9:00 AM. On January 16, 2014, this Court issued an amended writ of

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habeas corpus ad testificandum directing the Warden of Wasco State Prison (“Warden”)

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to produce inmate witness Ricky Tappin, #AR3660, to testify at trial by telephonic-

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conferencing on February 24, 2014, at 9:00 AM and from day to day until completion of

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the proceedings or as ordered by the Court. See Amended Order and Writ, Jan. 16,

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2014, ECF No. 141.1

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While the Court issued a Writ for Jacob Elijah Fleenor to appear via videoconference and an
Amended Writ for Ricky Tappin to appear via telephonic-conferencing, Plaintiff is responsible for ensuring
the attendance of these inmate witnesses by coordinating with prison officials and the Court Clerk.
Further, as required by this Court’s January 31, 2014 Order, ECF No. 145, Plaintiff is also required to file
an Amended Status Report regarding these inmate witnesses. Plaintiff is required to file this Amended
Status Report by 4:00 PM on Tuesday, February 18, 2014, not by Monday, February 17, 2014, as
originally required. See ECF Nos. 143,145.

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On January 21, 2014, Plaintiff’s counsel filed a status report. See ECF No. 143.

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Plaintiff’s counsel stated that the litigation coordinator at Wasco, Mr. Robert Daniel,

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indicated to Plaintiff’s counsel that telephonic-conferencing would be problematic

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because the facility is a reception center and not equipped or staffed for phone hearings.

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Id. Mr. Daniel informed Plaintiff’s counsel that he preferred an order for inmate Tappin’s

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personal appearance to testify at court. Id. Mr. Daniel also stated that inmates at

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Wasco normally stay for 90 to 120 days before being transferred to a more permanent

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location and that inmate Tappin had been at Wasco for approximately 120 days, thus

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making it likely that he will be transferred in the near future. Id. In the event inmate

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Tappin is not transferred, Mr. Daniel stated that an order for Mr. Tappin’s personal

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appearance could issue as late as February 4, 2014, and still allow sufficient time for his

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transfer to Sacramento to appear at the February 24, 2014 trial.2 Id.

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While the Court understands that having an inmate incarcerated at Wasco State

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Prison appear telephonically may be problematic for the reasons given by Mr. Daniel,

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transferring an inmate to Sacramento to testify briefly is costly and logistically more

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complicated. For this reason, as indicated in this Court’s January 16, 2014, Amended

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Order and Writ, ECF No. 141, the Warden is directed to make inmate Tappin available

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by telephonic-conferencing at the time indicated in that Writ. If the Warden anticipates

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problems following this Court’s Order requiring that it produce inmate Ricky Tappin to

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testify at trial by telephonic-conferencing, the Warden or his representative is ordered to

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advise Plaintiff’s counsel as soon as they become aware of the problem and no later

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than Friday, February 14, 2014. In addition, the Warden or his representative is ordered

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to notify the Court of any change in Tappin’s custody, to provide any new custodian with

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a copy of this Court’s January 16, 2014, Order and Writ, and to immediately inform

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Plaintiff’s counsel of that change as well.

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As noted in this Court’s January 31, 2014 Order, ECF No. 145, the Court is not in receipt of either
a motion from Wasco State Prison or an ex parte application from Plaintiff for an amended Writ of Habeas
Corpus Ad Testificandum ordering Ricky Tappin’s personal appearance at trial. The Court will only
address such a request upon receipt of motion or ex parte application for an Amended Order and Writ
regarding inmate witness Ricky Tappin. See ECF No. 145.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to serve by mail three (3) certified copies of

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this Order on the Warden of Wasco State Prison, 701 Scofield Avenue, P.O. Box 8800,

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Wasco, California, 93280-8800.

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2. The Clerk of the Court is further directed to send a courtesy copy of this order
by fax to the litigation coordinator at Wasco State Prison at (661)-758-7093.
3. The Warden of Wasco State Prison is ORDERED to advise Plaintiff’s counsel

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as soon as possible, but no later than February 14, 2014, if the Warden anticipates

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problems following this Court’s Order, ECF No. 141, requiring that Wasco State Prison

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produce inmate Ricky Tappin, #AR3660, to testify at trial by telephonic-conferencing.

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4. The Warden of Wasco State Prison is further ORDERED to advise both

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Plaintiff’s counsel and the Court of any change in custody of inmate Ricky Tappin,

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#AR3660, prior to the time of trial. Further, the Warden of Wasco State Prison is

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ORDERED to provide any new custodian with a copy of this Court’s January 16, 2014

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Order and Writ as well.

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5. Plaintiff is ORDERED to file an Amended Status Report by 4:00 PM on

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Tuesday, February 18, 2014, not by Monday, February 17, 2014, as originally required.

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IT IS SO ORDERED.
Dated: February 5, 2014

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