Morris v. Sandoval et al

Filing 261

ORDER by Judge James Donato denying 253 Motion for Reconsideration. (lrcS, COURT STAFF) (Filed on 4/19/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CONDALEE MORRIS,
Plaintiff,

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ORDER

v.

Re: Dkt. No. 253
D. SANDOVAL, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 12-cv-06132-JD

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. §

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1983 and trial is scheduled for May 22, 2017. The parties were ordered to provide a list of

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intended witnesses for trial. Plaintiff was informed that he must explain what each witness is

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expected to testify to and his financial arrangement to pay for non-prisoner witnesses to travel and

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testify if they are not willing to appear voluntarily. Plaintiff was informed that the Court cannot

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pay these expenses and the Court noted that plaintiff is proceeding in forma pauperis and had no

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money in his prisoner trust account at the time he filed this action. Plaintiff failed to follow Court

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directions and was provided an opportunity to file an amended witnesses list which he recently

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submitted.

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In the amended witness list plaintiff identifies ten witnesses but has again failed to describe

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how he will pay the witness attendance fees and travel costs if these witnesses will not appear

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voluntarily. It does not appear that these witnesses will testify voluntarily as plaintiff has included

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subpoenas to be completed by the Court. In addition, plaintiff seeks to have an expert witness

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testify who will provide an analysis for $1,250 and charges $5,500 for a half day of trial testimony

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among other costs and expenses. Docket No. 257 at 8.

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Plaintiff was provided an opportunity to demonstrate his financial arrangements to pay for

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witness fees and travel costs but he has again failed to discuss the matter in order for the Court to

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issue subpoenas. To the extent plaintiff seeks the Court to pay these costs, the Court cannot

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authorize the expenditure of public funds to cover these expenses for an indigent litigant. See

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United States v. MacCollom, 426 U.S. 317, 321 (1976) (“the established rule is that the

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expenditure of public funds is proper only when authorized by Congress”); Dixon v. Ylst, 990 F.2d

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478, 480 (9th Cir. 1992) (the in forma pauperis statute “does not waive payment of fees or

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expenses for witnesses”); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (fees and mileage

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costs must be tendered at the time of service of subpoena).1
While the Ninth Circuit has left open the possibility that a due process claim might be

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United States District Court
Northern District of California

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successful where an indigent plaintiff cannot pay the required witness fee, Hadsell v. Comm’r, 107

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F.3d 750, 753 (9th Cir. 1997), there is no due process violation in this case. In his amended

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witness list, plaintiff identifies ten witnesses. Four of the witnesses are the defendants and will be

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at the trial. Three additional witnesses that plaintiff seeks (Meyer, Huff and Trexler) will be

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testifying as indicated by defendants.2 Plaintiff may rely on defendants’ assertion that these

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witnesses will be testifying and defendants shall ensure that these witnesses appear. There is no

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due process violation as eight of the ten witnesses will be testifying. The ninth witness is a former

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inmate who as described below did not witness the incident in this case and the tenth witness is the

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expert whose testimony will cost thousands of dollars.

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Plaintiff also seeks the testimony of a former prison inmate. However, this inmate did not

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witness the incident in this case but will only testify to an alleged incident where he was assaulted

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by some of the same defendants more than a year after the incident in this case. Because this

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testimony is not relevant to this action, the witness will not be permitted.

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CONCLUSION

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1. Defendants’ shall ensure that the four defendants and witnesses Meyer, Huff and

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Trexler appear at trial. Plaintiff’s other witnesses will not be permitted for the reasons set forth

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On two separate occasions the Court appointed counsel for plaintiff, but he now proceeds pro se.
Ippolito was not identified on plaintiff’s amended witness list.
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above.
2. Plaintiff’s motion for reconsideration (Docket No. 253) of the Court’s denial of his

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motion for default judgment is DENIED for the same reasons as described in prior Court orders.

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The Court will no longer entertain motions on this issue.

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IT IS SO ORDERED.
Dated: April 19, 2017

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CONDALEE MORRIS,

Case No. 12-cv-06132-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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D. SANDOVAL, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on April 19, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Condalee Morris ID: #:V96203
Calif. State Prison, Sacramento
P.O. Box 290066
Represa, CA 95671

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Dated: April 19, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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