Harris v. Macomber et al

Filing 203

ORDER signed by Magistrate Judge Sean C. Riordan on 10/31/2024 WITHDRAWING the 200 Motion for the Location of Witnesses for Trial. Plaintiff's 190 & 202 Motion for a waiver of the requirement that plaintiff prepay witness fees and expense s will be decided after plaintiff submits additional information. Within 21 days, Plaintiff shall filed a record of his prison trust fund account for the past 6 months and an explanation of whether he has access to any other funds to pay witness fees , and if not, why not. Within 21 days, Defendants shall respond to Plaintiff's 193 , 194 , and 202 Motions for the Attendance of Witnesses and within 10 days of the service of Defendants' response, Plaintiff may file a reply. Within 14 days, Defendants shall file the statement described in this order regarding the detention status of potential witness Nathan Carlson. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRADY HARRIS,

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No. 2:16-cv-0830 TLN SCR P

Plaintiff,
v.

ORDER

JEFF MACOMBER, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C.

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§1983. Before the court are plaintiff’s: (1) motion for the location of witnesses for trial (ECF

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No. 200); (2) motions for a waiver of the requirement that plaintiff prepay witness fees and

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expenses (ECF Nos. 190, 202); and (3) motions for the attendance of witnesses at trial (ECF Nos.

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193, 194, 202). For the reasons set forth below, this court recognizes that plaintiff has withdrawn

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his motion for the location of witnesses, denies plaintiff’s motion to be relieved of the

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requirement that he prepay witness fees, and orders defendants to file responses to plaintiff’s

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motions for the attendance of witnesses at trial. In addition, this court orders defendants to

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provide further information on the detention status of potential witness Carlson.

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BACKGROUND

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On March 28, 2023, this court issued a Further Scheduling Order. (ECF No. 156.) The

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order set deadlines for filing pretrial statements. In addition, the order informed plaintiff about
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the processes for producing the testimony of witnesses at trial. (Id. at 2-4.) The order stated that

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plaintiff must file a motion for the attendance of incarcerated witnesses along with his pretrial

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statement. That motion must include the following three things:

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(1) The name and address of each witness.

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(2) An affidavit stating whether the witness is willing to testify voluntarily without being

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subpoenaed. This affidavit can be signed and sworn by either plaintiff or the prospective

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witness. If the affidavit is signed by plaintiff, plaintiff must state when and where the witness

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told plaintiff he was or was not willing to testify voluntarily. If the affidavit is signed by the

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prospective witness, the witness must state that he is willing to testify without being

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subpoenaed.

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(3) An affidavit showing the prospective witness’s actual knowledge of relevant facts. If

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the affidavit is signed and sworn by plaintiff, plaintiff must show that he has firsthand

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knowledge that the witness either saw or heard relevant facts. If the affidavit is signed by the

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witness, the witness must describe the relevant facts he saw or heard.

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The Further Scheduling Order then stated that if the court determines that all or some of

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the incarcerated witnesses may testify at trial, the court will issue an order to the prison to bring

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the witness(es) to court. The Further Scheduling Order also set out a procedure for obtaining the

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testimony of unincarcerated witnesses. (ECF No. 156 at 4.)

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In a pretrial statement filed in May 2023, plaintiff identified six inmate witnesses but did

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not file an appropriate motion for their attendance. Plaintiff also sought address for two

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witnesses: K. Johnson and Carlson. (ECF No. 166.) Thereafter, plaintiff filed additional

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information about several of the potential inmate witnesses and appeared to seek to add others.

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(ECF No. 173.) In June 2023, defendants’ counsel provided plaintiff with an address at

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California State Prison, Los Angeles, for “C. Johnson” #K65390.1 However, defendants stated

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that they were unable to locate an inmate Carlson with the prison identification number plaintiff

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provided. (ECF No. 174.)

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Defendants identify witness Johnson, #65390, as “C. Johnson.” Plaintiff occasionally continues
to refer to that witness as “K. Johnson.”
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In a May 2024 order, the court recognized the difficulty plaintiff had in locating and

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communicating with the inmate witnesses. (ECF No. 185.) The court found plaintiff made a

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sufficient showing that six inmate witnesses – Priece, Jones, Morris, Bricker, Johnson, and

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Carlson – had information that may be relevant to the issues in this case. The court directed

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defendants to facilitate plaintiff’s written communication with those inmate witnesses and,

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because plaintiff had updated the inmate number for Carlson, ordered defendants to provide an

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address for Carlson. The court also noted that two witnesses are no longer incarcerated and

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reminded plaintiff of the procedures for obtaining the attendance of unincarcerated witnesses,

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including prepayment of witness and travel fees for witnesses who are not willing to testify

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voluntarily.

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In a May 15, 2024 filing, defendants stated that witness Nathan J. Carlson, formerly

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#AB9169, is no longer incarcerated and provided an address for him at the Male Correctional

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Re-entry Program (MCRP) in Los Angeles. (ECF No. 187.) It is not clear to the court, however,

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whether Carlson remains under the control of CDCR. According to the CDCR website, MCRP is

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a “pre-release” program.2 Defendants will be ordered to inform the court whether Carlson may

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travel to testify either voluntarily or under a court subpoena. If he is not free to do so, defendants

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must explain how Carlson’s travel to Sacramento to testify would be arranged, including where

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he would be housed, if necessary, during that time.

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On July 1, 2024, plaintiff filed motions for the attendance of incarcerated witnesses

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Jayshawn Priece and Ervin Morris. (ECF Nos. 193, 194.) Plaintiff also sought, and was granted,

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an extension of time to file additional motions for the attendance of witnesses.

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Also on July 1, plaintiff filed an amended witness list. (ECF No. 195.) Plaintiff lists the

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following inmate witnesses: Jayshawn Priece, Tylo Felix, Ervin Morris, Johnson, and himself.

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Plaintiff also identifies witnesses Carlson, Jones, and Bricker by their inmate identification

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numbers. However, the court and plaintiff have recognized that Jones and Bricker are no longer

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It appears that the program defendants refer to is the Male Community (as opposed to
“Correctional”) Reentry Program. See https://www.cdcr.ca.gov/rehabilitation/pre-releasecommunity-programs/.
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incarcerated. (See ECF No. 185 at 4; ECF No. 202 at 3-4.) In addition, as described above,

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Carlson’s status is currently not clear.

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On August 16, 2024, plaintiff filed a document titled “Motion Requesting Location and or

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Assisting Locating Witness for Trial.” (ECF No. 200.) In that motion, plaintiff states that he is

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“requesting the location for inmate Carlson #AB9169.” Plaintiff also indicates he is seeking the

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location of witness “K. Johnson.” In their opposition, defendants point out that they already

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provided plaintiff with that information. (ECF No. 201.) In his reply, plaintiff appears to go

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through the history of his attempts to obtain the location of these two witnesses and concludes by

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stating that he contacted Carlson and attaches a motion for the attendance of incarcerated witness

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K. Johnson. (ECF No. 202.) Accordingly, this court considers plaintiff to have withdrawn his

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August 16 motion for the location of witnesses.

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Also attached to plaintiff’s reply is a “Motion Requesting Response on Plaintiff’s Request

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of Waived Witness Travel Expenses and or Fees for Trial.” (ECF No. 202 at 11.) Plaintiff

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references a motion he filed on “June 2, 2024” for a waiver of witness fees and expenses.

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Plaintiff appears to be referring to a document filed here on June 14, 2024. (ECF No. 190.) In

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that document, plaintiff requests, among other things, that witness fees be waived until after

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judgment or settlement of the case or that the losing party be required to pay the fees. (ECF No.

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190 at 3-4.)

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MOTION RE PREPAYMENT OF WITNESS FEES

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The court has previously instructed plaintiff that his in forma pauperis status does not

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relieve him of the responsibility of paying witness fees (ECF No. 156 at 4) and plaintiff appears

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to recognize that responsibility (see ECF No. 202 at 12). However, plaintiff states that he is

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“unable to afford the $40 per day cost of witness’s travel expensive [sic] and or lost of pay

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wages.” (Id.) The Ninth Circuit has made clear that, at least as the IFP statute is concerned, “fees

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must be tendered concurrently with the subpoena,” regardless of indigence. Tedder v. Odel, 890

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F.2d 210, 211 (9th Cir. 1989) (citing CF & I Steel Corp. v. Mitsui & Co., 713 F.2d 494, 496 (9th

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Cir.1983)); see also Garcia v. Spokane Cnty., 745 F. App’x 730, 731 (9th Cir. 2018) (citing

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Tedder, 890 F.2d at 211); Cortinas v. Vasquez, No. 1:19-cv-0367 JLT SKO PC, 2022 WL
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837377, at *2 (E.D. Cal. Mar. 21, 2022) (same). Moreover, plaintiff’s reference to 28 U.S.C.

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§1825 is inapposite because that section involves the payment of fees in cases in which the

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United States or an officer or agency of the United States is a party.

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However, the court is concerned about the prospect of plaintiff being unable to pay

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witness fees and how that might affect his ability to present his case at trial. In order to further

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develop the record on this issue, and allow the court to decide how to proceed, plaintiff is

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instructed to file with the court a record of his prison trust fund account for the past six months

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and an explanation of whether he has access to any other funds to pay witness fees (for example,

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from friends or family members), and if not, why not.

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MOTIONS FOR THE ATTENDANCE OF INCARCERATED WITNESSES

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Plaintiff submitted motions for the attendance of three witnesses: Jayshawn Priece (ECF

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No. 193), Ervin Morris (ECF No. 194), and Carl Johnson (ECF No. 202 at 5-9). Defendants have

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not responded to these motions. They will be ordered to do so.

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On July 19, the court gave plaintiff thirty days to file any additional motions for the

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attendance of incarcerated witnesses. In his July 1 Amended Witness List, plaintiff also

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identified incarcerated witness Tylo Felix. (ECF No. 195.) However, plaintiff has not filed a

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motion for the attendance of Felix or sought further extensions of time to do so.

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As described above, defendants will be ordered to provide more details about the status of

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potential witness Carlson’s detention. If defendants’ statement shows that Carlson should be

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treated like an incarcerated witness, the court will provide plaintiff additional time to file a

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motion for Carlson’s attendance.

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For the foregoing reasons, IT IS HEREBY ORDERED that

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1. Plaintiff’s motion for the location of witnesses for trial (ECF No. 200) is considered

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withdrawn.

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2. Plaintiff’s motions for a waiver of the requirement that plaintiff prepay witness fees

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and expenses (ECF Nos. 190, 202) will be decided after plaintiff submits additional

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information. Within twenty-one days of the date of this order, plaintiff shall file a

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record of his prison trust fund account for the past six months and an explanation of
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whether he has access to any other funds to pay witness fees, and if not, why not.
3. Within twenty-one days of the date of this order, defendants shall respond to

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plaintiff’s motions for the attendance of witnesses Jayshawn Priece (ECF No. 193),

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Ervin Morris (ECF No. 194), and Carl Johnson (ECF No. 202). Within ten days of the

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service of defendants’ response, plaintiff may file a reply.

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4. Within fourteen days of the date of this order, defendants shall file the statement
described above regarding the detention status of potential witness Nathan Carlson.
DATED: October 31, 2024

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