Burnett v. Miranda

Filing 84

FURTHER SCHEDULING ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/16/2015: Discovery is closed; Law and Motion is closed; Plaintiff's pretrial statement and any motions to obtain trial witnesses due within 21 days; Defendants Miranda and Simmerson's pretrial statement due within 14 days of service of plaintiff's.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ESTER BURNETT,

12
13
14

No. 2:13-cv-1239 MCE CKD P

Plaintiff,
v.

FURTHER SCHEDULING ORDER

R. MIRANDA, et al.,

15
Defendants.

16
17
18
19

Good cause appearing, the court will, by this order, set a further schedule for this
litigation.
The parties will be required to file pretrial statements in accordance with the schedule set

20

forth below. As set forth in this court’s initial scheduling order, in addition to the matters already

21

required to be addressed in the pretrial statement in accordance with Local Rule 281, plaintiff will

22

be required to make a particularized showing in the pretrial statement in order to obtain the

23

attendance of witnesses. Plaintiff is advised that failure to comply with the procedures set forth

24

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

25

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

26

of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of

27

trial evidence: (1) exhibits and (2) the testimony of witnesses. It is the plaintiff’s responsibility

28

to produce all of the evidence to prove the case, whether that evidence is in the form of exhibits
1

1

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

2

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

3

I.

4

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

5

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

6

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

7

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

8

1. The prospective witness is willing to attend;

9

and

10

2. The prospective witness has actual knowledge of relevant facts.

11

With the pretrial statement, a party intending to introduce the testimony of incarcerated

12

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

13

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

14

The motion must:

15

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

16

and

17

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

18

and that each witness has actual knowledge of relevant facts.

19

The willingness of the prospective witness can be shown in one of two ways:

20

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

21

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

22

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

23

the party of this willingness;

24

Or

25

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

26

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

27

subpoenaed.

28

/////
2

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

1
2

ways:

3

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

4

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

5

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

6

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

7

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

8

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

9

Or

10

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

11

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

12

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

13

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

14

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

15

be in a position to see or to hear what occurred at the time it occurred.

16

The court will review and rule on the motion for attendance of incarcerated witnesses,

17

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

18

issue the order necessary to cause the witness’ custodian to bring the witness to court.

19

II.

20

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

21

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

22

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

23

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

24

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

25

/////

26

/////

27

/////

28

/////
3

1

III.

2

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

3
4

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

5

obtained from the court.

6

IV.

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

earlier, because no statute authorizes the use of public funds for these expenses in civil cases, the

18

tendering of witness fees and travel expenses is required even if the party was granted leave to

19

proceed in forma pauperis.

20
21

Good cause appearing, pursuant to Fed. R. Civ. P. 16(b), THIS COURT ORDERS AS
FOLLOWS:

22

1. Discovery is closed.

23

2. Law and motion is closed.

24

3. Plaintiff shall file and serve his pretrial statement and any motions necessary to obtain

25

the attendance of witnesses at trial within 21 days. Defendants Miranda and Simmerson shall file

26

/////

27

/////

28

/////
4

1

their pretrial statement within 14 days of service of plaintiff’s. The parties are advised that failure

2

to file a pretrial statement may result in the imposition of sanctions, including dismissal of this

3

action.

4

Dated: June 16, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

5
6
7
8
9
10

1
burn1239.41nosj

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5