(PC) Howell v. Liddell et al

Filing 54

ORDER signed by Magistrate Judge Kendall J. Newman on 3/31/2021 SETTING Evidentiary Hearing for 7/6/2021 at 09:00 AM before Magistrate Judge Kendall J. Newman and ORDERING Parties to prepare for the hearing in accordance with the terms set forth in this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,

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No. 2:19-cv-0578 TLN KJN P

Plaintiff,
v.

ORDER

M. LIDDELL, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On March 26, 2021, the district court adopted the February 4, 2021 findings

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and recommendations. Accordingly, this matter is set for an evidentiary hearing with respect to

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whether plaintiff exhausted his administrative remedies. (See ECF No. 51.) The procedures for

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the evidentiary hearing are set forth herein.

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A. Witnesses

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On or before forty-five days prior to the hearing, the parties shall provide witness lists.

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Each party may call any witness designated by the other.
1. No other witness will be permitted to testify unless:

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a. The party offering the witness demonstrates that the witness is for the purpose

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of rebutting evidence which could not be reasonably anticipated prior to the evidentiary hearing.

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b. The witness was not discovered after the exchange of witnesses and the
proferring party makes the showing required in “2” below.

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2. Within the thirty day period prior to the evidentiary hearing, the parties shall promptly

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inform the court and opposing parties of the existence of the unlisted witnesses so that the court

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may consider at the evidentiary hearing whether the witnesses shall be permitted to testify. The

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witnesses will not be permitted unless:

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a. The witnesses could not reasonably have been discovered prior to the exchange
of witness lists;

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b. The court and the opposing party were promptly notified upon discovery of the
witnesses;

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c. If time permitted, the party proferred the witnesses for deposition; or

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d. If time did not permit, a reasonable summary of the witnesses’ testimony was

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provided to the opposing party.

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The procedures for plaintiff to obtain witnesses at the evidentiary hearing are the same as

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those set forth in the November 8, 2019 scheduling order. The undersigned repeats those

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procedures herein.

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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 the evidentiary hearing to give

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testimony cannot come to court unless this court orders the warden or other custodian to permit

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the witness to be transported to court. This court will not issue such an order unless it is satisfied

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that:

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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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Forty-five days prior to the evidentiary hearing, a party intending to introduce the

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testimony of incarcerated witnesses who have agreed voluntarily to attend the evidentiary hearing

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must serve and file a written motion for a court order requiring that such witnesses be brought to

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court at the time of the evidentiary hearing. The motion must:

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1. State the name, CDC Identification number, 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 or she is willing to testify voluntarily without being subpoenaed. The

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

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the 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

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of two 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;

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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. 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, forty-five days prior to the evidentiary hearing, the party should submit a motion for

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the attendance of such witnesses. Such motion should be in the form described above. In

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addition, the party must indicate in the motion that the incarcerated witnesses are not willing to

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testify voluntarily.
III. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to
Testify Voluntarily

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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 the evidentiary hearing. No action need

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be sought or obtained from the court.

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IV. 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,

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forty-five days before the evidentiary hearing, the party must prepare and submit to the United

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States Marshal a subpoena for service by the Marshal upon the witness. (Blank subpoena forms

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may be obtained from the Clerk of the Court). Also, the party seeking the witness’ presence must

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tender an appropriate sum of money to the witness through the United States Marshal. In the case

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of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 plus

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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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V. Potential Witness Released from Custody

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With his opposition to the motion for summary judgment, plaintiff provided two inmate

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declarations. (ECF No. 51 at 7-8.) The inmate locator for the CDCR shows that inmate Mark A.

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Hunt, F-60076, is no longer in CDCR custody. Accordingly, counsel for defendants shall provide

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the court with Mr. Hunt’s last known address.

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B. Exhibits, Schedules and Summaries

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Both parties shall exchange copies of their exhibits thirty days prior to the evidentiary

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hearing. Any objections to the exhibits may be raised at the hearing.

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1. No other exhibits will be permitted to be introduced unless:

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a. The party proferring the exhibit demonstrates that the exhibit is for the purpose
of rebutting evidence which could not have been reasonably anticipated, or

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b. The exhibit was discovered after the exchange of exhibits and the proferring
party makes the showing required in Paragraph “2” below.

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2. Within the fifteen-day period prior to the evidentiary hearing, the parties shall

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promptly inform the court and opposing counsel of the existence of such exhibits so that the court

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may consider their admissibility at the evidentiary hearing. The exhibits will not be received

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unless the proferring party demonstrates:

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a. The exhibits could not reasonably have been discovered earlier;

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b. The court and the opposing party were promptly informed of their existence; or

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c. The proferring party forwarded a copy of the exhibit(s) (if physically possible)

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to the opposing party. If the exhibit(s) may not be copied the proferring party must show that he

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has made the exhibit(s) reasonably available for inspection by the opposing party.

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C. Evidentiary Hearing

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The U.S. Courthouse is currently closed to the public due to the current COVID-19

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pandemic. Thus, along with their witness lists, the parties shall also inform the court whether

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anyone has an objection to the court holding the evidentiary hearing by Zoom, or whether the

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hearing should be delayed until it can be held in person.

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Accordingly, IT IS HEREBY ORDERED that an evidentiary hearing is set for July 6,

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2021, at 9:00 a.m., before the undersigned; the parties shall prepare for the hearing in accordance

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with the terms set forth in this order.

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Dated: March 31, 2021

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/howe0578.evi

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