Candler v. Stewart et al

Filing 91

PRETRIAL ORDER signed by District Judge Daniel J. Calabretta on 8/29/2023 DENYING 87 Request for Issuance of Subpoenas of Trial Witnesses. DENYING 90 Request for Verdict Forms, and the Clerk of the Court is directed to include with this Order a copy of the blank subpoena form used in this district. (Attachments: # 1 Blank Subpoena) (Reader, L)

Case 2:17-cv-02436-DJC-CKD Document 91 Filed 08/29/23 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH CANDLER,

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No. 2:17-cv-02436-DJC-CKD

Plaintiff,
v.

PRETRIAL ORDER

J. LEBECK, et al.,
Defendants.

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

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rights action pursuant to 42 U.S.C. § 1983. This matter is set for trial on October 19,

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2023. Following the Final Pretrial Conference and issuance of the Final Pretrial Order,

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Plaintiff has filed three documents with this court making various requests and raising

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objections. (See ECF Nos. 87, 88, 90.)

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The first document filed by Plaintiff is entitled “Plaintiff presenting 13 subpoena

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for trial witnesses”. (ECF No. 87.) In it, Plaintiff requests that the Court “order the

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marshals to issue subpoena to said unincarcerated witnesses to Plaintiff can question

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them during trial.” (Id. at 1.) However, such an order is not necessary for Plaintiff to be

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able to utilize the United States Marshals Service to serve subpoenas. As Plaintiff was

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informed in the Discovery and Scheduling Order issued in this case, “If a prospective

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witness is not incarcerated, and he or she refuses to testify voluntarily, not earlier than
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Case 2:17-cv-02436-DJC-CKD Document 91 Filed 08/29/23 Page 2 of 4
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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

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witness. (Blank subpoena forms may be obtained from the Clerk of the Court).” (ECF

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No. 19 at 4.) The Court will direct the Clerk of the Court to provide Plaintiff with a

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copy of the blank subpoena form. The Court reminds the Plaintiff that he does not

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need to subpoena any witnesses who agree to testify voluntarily. (See id. at 3–4.)

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Plaintiff is also permitted to call any witnesses designated by the Defendant. (See ECF

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No. 86 at 2.)

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It appears Plaintiff may also be requesting that the Court waive the fees

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associated with using the United States Marshals to serve subpoenas based on

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Plaintiff’s in forma pauperis status. (ECF No. 87 at 1.) The Ninth Circuit has expressly

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rejected that courts are authorized to waive fees and expenses for witnesses based on

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in forma pauperis status under 42 U.S.C. § 1915. Tedder v. Odel, 890 F.2d 210, 211–

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12 (9th Cir. 1989) (“Although the plain language of section 1915 provides for service

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of process for an indigent's witnesses, it does not waive payment of fees or expenses

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for those witnesses. The Supreme Court has declared that the expenditure of public

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funds [on behalf of an indigent litigant] is proper only when authorized by Congress.”

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(internal quotation marks and citations omitted)). Thus, to the extent Plaintiff is making

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such a request, that request is denied as the Court does not have the authority to

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authorize the waiver of the fees for service by the United States Marshal Service.

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Plaintiff’s second document is entitled “Plaintiff objection to defendants (sic)

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amended pretrial statement” and states three objections to this pretrial statement.

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(ECF No. 88 at 1–2.) The first is that the Court previously denied Plaintiff’s request to

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amend his pretrial statement and it is prejudicial to permit Defendants to amend when

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Plaintiff’s request was denied. (Id. at 2.) This seems to be a reference to the Court’s

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denial of Plaintiff’s request to amend the pretrial statement to add a news article to his

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exhibit list. (See ECF No. 78.) The Court denied that request at the Final Pretrial

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Hearing on the basis that the proposed exhibit would not be admissible at trial.
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However, the Court expressly informed the Plaintiff that it would permit him the

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opportunity to amend his pretrial statement if he believed he had another reason to

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do so. The denial of Plaintiff’s previous motion to amend was based solely on the

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inadmissibility of the proposed evidence and was made without prejudice to a new

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request. Plaintiff may still request to file an amended pretrial statement if he wishes to

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do so and the Court will give that motion full consideration.

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The other two objections contained in Plaintiff’s second document concern

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Defendants’ argument in their pretrial statement that Plaintiff’s proposed witnesses

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lack sufficient personal knowledge and a general objection to Plaintiff’s prior felony

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convictions being raised at trial. (ECF No. 88 at 2.) Both of these objections are more

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properly suited to motions in limine; Defendants’ arguments in their pretrial

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statements are not a motion in their own right and do not necessitate objections. To

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the extent that Plaintiff wishes to raise issues regarding the permissibility of certain

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witnesses or Plaintiff’s prior convictions at trial, Plaintiff is invited to file these as

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motions in limine by the deadline previously set by the Court.

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Finally, Plaintiff has filed a request for “the verdict forms” from the Clerk of the

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Court. (ECF No. 90 at 1.) At the Final Pretrial Conference and in its Final Pretrial

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Order, the Court directed parties to file proposed jury instructions and verdict forms

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on or before October 4, 2023. (ECF No. 86 at 4.) Verdict forms are forms that are

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provided to the jury to be filled out and returned to the Court once they reach a

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verdict. These forms are created by the parties, not by the Court. As such, the Court

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does not have a “verdict form” to provide to Plaintiff and this request will be denied.

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Case 2:17-cv-02436-DJC-CKD Document 91 Filed 08/29/23 Page 4 of 4
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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Request for Issuance of Subpoenas of Trial Witnesses (ECF No. 87)

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is DENIED;

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2. Plaintiff’s Request for Verdict Forms (ECF No. 90) is DENIED; and

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3. The Clerk of the Court is directed to include with this Order a copy of the

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blank subpoena form used in this district.

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IT IS SO ORDERED.

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Dated:

August 29, 2023
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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DJC1 - candler17cv02436.mult_mot

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