Bartholomew v. Solorzano

Filing 48

ORDER signed by Magistrate Judge Deborah Barnes on 03/31/17 ordering plaintiff shall file and serve his pretrial statement and any motions necessary to obtain the attendance of witnesses at trial on or before 11/14/17. Defendant shall file his pretr ial statement on or before 12/12/17. A pretrial conference is set in this case for 1/09/18 before the magistrate judge to be conducted on the file only without appearance by either party. ( Jury Trial set for 3/6/2018 at 09:00 AM in Courtroom 10 (GEB) before District Judge Garland E. Burrell Jr.) (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN BARTHOLOMEW,

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Plaintiff,

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No. 2:13-cv-1500 GEB DB P

v.

ORDER

A. V. SOLORZANO,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. By order dated February 24, 2017, the Honorable Garland

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E. Burrell, Jr., adopted findings and recommendations to deny plaintiff’s motion for summary

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judgment. (ECF Nos. 43, 47.) Good cause appearing, the court will, by this order, reset a schedule

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for this litigation.

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In due course, the parties will be required to file pretrial statements in accordance with the

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schedule set forth below. In addition to the matters already required to be addressed in the pretrial

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

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showing in his pretrial statement in order to obtain the attendance of witnesses. Plaintiff is

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advised that failure to comply with the procedures set forth below may result in the preclusion of

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any and all witnesses named in his 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 to

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

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

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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; 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; 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 party

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

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this willingness; or

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2. The party can serve and file an affidavit sworn to by the prospective witness, in
which the witness states that he or she is willing to testify without being subpoenaed.

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

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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 knowledge

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that the prospective witness was an eyewitness or an ear-witness to the relevant facts. For

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example, if an incident occurred in the plaintiff’s cell and, at the time, the plaintiff saw

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that a cellmate was present and observed the incident, the plaintiff may swear to the

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cellmate’s ability to testify. 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 was an

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

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witness, it must be specific about what the incident was, when and where it occurred, who

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

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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’s 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

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.

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’s 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

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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’s 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’s 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’s 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:

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

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the attendance of witnesses at trial on or before November 14, 2017. Defendant shall file his

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pretrial statement on or before December 12, 2017. The parties are advised that failure to file a

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pretrial statement may result in the imposition of sanctions, including dismissal of this action.

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2. A pretrial conference (as described in Local Rule 282) is set in this case for January 9,

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2018, 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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3. This matter is set for jury trial before the Honorable Garland E. Burrell, Jr. on March 6,

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2018, at 9:00 a.m. in Courtroom 10.

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Dated: March 31, 2017

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/DLB7;
DB/Inbox/Routine/bart1500.trial sch o

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