Payne v. Martin et al

Filing 90

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/25/2015 DENYING plaintiff's 76 motion for a settlement conference; DENYING without prejudice plaintiff's 83 motion for issuance of subpoenas; and GRANTING defendant's 88 motion to strike plaintiff's objections to defendant's pretrial statement, and the Clerk shall strike ECF No. 87 . (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE’THIEL PAYNE,

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Plaintiff,

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No. 2:11-cv-1970-TLN-EFB P

v.

ORDER

J. MARTIN, et al.,

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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. Currently pending before the court are plaintiff’s motions for a settlement

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conference (ECF No. 76) and for the issuance of subpoenas to two proposed trial witnesses (ECF

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No. 83) and defendant’s motion to strike plaintiff’s objections to defendant’s pretrial statement

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(ECF No. 88).
I.

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Plaintiff’s Motion for Settlement Conference

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Defendant opposes plaintiff’s motion for a settlement conference. ECF No. 81.

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Defendant informs the court that he does not believe a settlement conference would be

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productive, and declines to accept plaintiff’s settlement offer or plaintiff’s request for a counter-

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offer. In light of the apparent futility of a settlement conference, plaintiff’s motion will be

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denied.

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II.

Plaintiff’s “Motion for Subpoena”

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Plaintiff asks the court to have the U.S. Marshal serve subpoenas on two individuals to

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ensure their appearance at trial. ECF No. 83. The motion indicates that both individuals were

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incarcerated at one point, but the California Department of Corrections and Rehabilitation’s

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inmate locator website indicates that one – identified by plaintiff as C. Smith, #T76356 – is no

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longer incarcerated (or possibly plaintiff has provided an incorrect inmate number for this

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individual). The other witness – Nelson, #K39042 – is incarcerated at California State Prison,

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Sacramento. CDCR Inmate Locator, http://inmatelocator.cdcr.ca.gov/ (searched February 24,

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2015). Plaintiff’s single-page motion fails to comply with this court’s prior order instructing

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plaintiff on the proper procedure for ensuring the attendance at trial of his witnesses. The court

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will reiterate those requirements:

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I. Obtaining Attendance of an Incarcerated Witness Who Intends to Testify

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Voluntarily

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

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but who is imprisoned or incarcerated, cannot appear to testify without a court

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order directing the custodian to produce him at the time of trial. The court will

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issue such an order only upon a showing that the witness has agreed to testify

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voluntarily and has actual knowledge of relevant facts. Therefore, a party

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intending to introduce testimony from such a witness must file with his pretrial

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statement a motion for an order directing the witness’s custodian to produce the

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witness for trial. The motion must:

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1. Identify the witness by name, California Department of Corrections

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and Rehabilitation number, and address;

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2. Include affidavits showing that the witness intends to testify

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voluntarily. This intention can be shown as follows:

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a. The party can swear by affidavit that the witness has

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communicated to him an intention to testify voluntarily. The

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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

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without the compulsion of subpoena.

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3. Include affidavits showing each witness has actual knowledge of

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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

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relevant facts. For example, if something occurred in plaintiff’s

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cell and plaintiff saw that a cell-mate was present and observed the

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incident, then plaintiff may swear to the cell-mate’s ability to

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testify; or,

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b. The witness can swear to the relevant facts he observed. Any

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such affidavit must describe the incident, state when it occurred,

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where it occurred, who was present, and how the witness was in a

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position to see or to hear what occurred.

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II. Obtaining Attendance of an Incarcerated Witness Who Refuses to Testify

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Voluntarily

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If a party seeks to present testimony of an imprisoned or incarcerated

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witness who does not intend to testify voluntarily, the party must with his pretrial

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statement file a motion for an order directing that witness to appear. Such a

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motion must comply with the requirements explained above but the movant must

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demonstrate that any such witness does not intend to testify voluntarily.

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III. Obtaining Attendance of an Unincarcerated Witness Who Agrees to Testify

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Voluntarily

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A party need not obtain an order to produce an unincarcerated witness

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who intends to testify voluntarily. However, the party is responsible for ensuring

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attendance of such a witness.

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IV. Obtaining Attendance of Unincarcerated Witnesses Who Refuse to Testify

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Voluntarily

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

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

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who proceeds in forma pauperis, must complete and submit to the United States

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Marshal a subpoena for service upon the witness. Blank subpoena forms may be

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obtained from the Clerk of the Court. Along with a completed subpoena, the party

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must also submit a copy of the court’s order granting that party in forma pauperis

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status. Additionally, the party must tender a money order payable to the witness

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

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The party must also notify the court that these materials have been submitted to

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the United States Marshal not earlier than four weeks and not later than two

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weeks before trial. A subpoena will not be served by the United States Marshal

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upon an unincarcerated witness unless the subpoena is accompanied by the

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materials listed above. No statute authorizes the use of public funds for expenses

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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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ECF No. 50 at 2-4. Plaintiff has not followed these procedures. If Mr. Smith is no longer

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incarcerated and intends to testify voluntarily, plaintiff does not need a subpoena. If Mr. Smith is

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no longer incarcerated and will not testify voluntarily, plaintiff must wait until not earlier than

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four weeks before trial (and not later than two weeks before trial) and then submit his completed

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subpoena form for Mr. Smith directly to the U.S. Marshal along with the $40 daily witness fee

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and the witness’s travel expenses. For Mr. Nelson, plaintiff must provide the required affidavits

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showing whether or not the he will testify voluntarily and what relevant facts he possesses. If

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plaintiff complies with these requirements, the court will direct Mr. Nelson’s custodian to

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produce him at trial; no subpoena form need be submitted by plaintiff. Because plaintiff has not

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complied with the requirements, his motion to subpoena these two witnesses will be denied

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without prejudice.
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III.

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Defendant’s Motion to Strike
The court will grant defendant’s motion to strike plaintiff’s objections to defendant’s

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pretrial statement. The court informs plaintiff that the pretrial statement exists for the education

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of the court and will not determine the facts or law presented to the jury or the resolution of the

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evidentiary issues identified by the parties. If plaintiff opposes a witness or item of evidence

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listed by defendant, he may file a motion in limine addressing that issue with the court within the

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timeframe that will be provided in the court’s pretrial order.

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IV.

Order
Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s July 1, 2014 motion for a settlement conference (ECF No. 76) is denied;

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2. Plaintiff’s July 30, 2014 motion for issuance of subpoenas (ECF No. 83) is denied

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without prejudice; and
3. Defendant’s November 3, 2014 motion to strike plaintiff’s objections to

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defendant’s pretrial statement (ECF No. 88) is granted, and the Clerk of the Court

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is directed to strike ECF No. 87.

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Dated: February 25, 2015.

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