Davis v. Johnson et al

Filing 47

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/29/2019 ORDERING discovery is closed; ORDERING law and motion is closed; and ORDERING Plaintiff to file and serve his pretrial statement and any motions necessary to obtain the attendance of witnesses at trial on or before 10/1/2019 and Defendant to file his pretrial statement within 30 days of service of Plaintiff's. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS DAVIS,

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No. 2:17-cv-0544 JAM CKD P
Plaintiff,

v.

FURTHER SCHEDULING ORDER

B. JOHNSON, et al.,

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Defendants.

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A motion for summary judgment in this matter has been resolved pursuant to order filed

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June 20, 2019. Good cause appearing, the court will, by this order, set a further schedule for this

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litigation.

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The parties will be required to file pretrial statements in accordance with the schedule set

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

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

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

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

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below may result in the preclusion of any and all witnesses named in the 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
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to produce all of the evidence to prove the case, whether that evidence is in the form of exhibits

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

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certain 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;

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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;

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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 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

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party of this willingness;

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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 states that he or she is willing to testify without being

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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

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

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

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

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

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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

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

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

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

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be in a position to see or to 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’ 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

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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.

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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

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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’ 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’ 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’ 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. Discovery is closed.

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2. Law and motion is closed.

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3. 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 October 1, 2019. Defendant shall file his pretrial

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statement within 30 days of service of plaintiff’s. 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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Dated: July 29, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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