Nelson v. Runnels et al
Filing
103
ORDER signed by Magistrate Judge Kendall J. Newman on 6/16/11 ORDERING that the courts 98 order to show cause filed is DISCHARGED. Plaintiffs 100 motion to obtain the attendance of incarcerated witness Joshua Christenson is GRANTED; the court will issue a timely writ ad testificandum to obtain the attendance of Mr. Christenson at trial.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RAYMOND PAUL NELSON,
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Plaintiff,
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Case 2:06-cv-1289 LKK KJN P
vs.
D.L. RUNNELS, et al.,
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Defendants.
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ORDER
/
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On June 7, 2011, this court issued an order to show cause directing plaintiff to
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explain his failure to comply with the court’s May 6, 2011 order requiring that plaintiff file an
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amended motion and affidavit in support of his request to obtain the attendance of incarcerated
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witnesses. Plaintiff timely responded to the court’s order to show cause, and attached a copy of
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his amended motion and affidavit, which bear a timely file-stamp by this court. The undersigned
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has ascertained that these matters were timely submitted but, due to court error, not timely
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docketed. Plaintiff’s amended motion and affidavit have now been docketed (Dkt. Nos. 100,
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101), and set forth the same information plaintiff has again provided in his response to the order
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to show cause (Dkt. No. 99). Therefore, plaintiff timely complied with the court’s May 6, 2011
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order. Accordingly, the order to show cause is discharged.
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In his Pretrial Statement (Dkt. No. 90), plaintiff listed two defendants, both
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incarcerated at that time: Jason Hogan and Joshua Christenson (initially spelled “Josh
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Christianson”). (Id. at 10.) Plaintiff requested additional time to file an amended witness list
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that would include an “expert medical witness and additional inmate testimony as outstanding
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declarations have not been submitted.” (Id. at 11.) Plaintiff was twice granted such additional
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time, up to and including May 27, 2011. (Dkt. Nos. 94, 97.)
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In his amended motion and supporting affidavit, plaintiff addresses only the
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testimony of witness Joshua Christenson, who is presently incarcerated at Centinella State
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Prison. Plaintiff has filed an affidavit setting forth Mr. Christenson’s alleged actual knowledge
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of relevant facts, and his refusal to testify voluntarily. These filings comport with the
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informational requirements for obtaining the trial attendance of an involuntary incarcerated
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witness. (See Dkt. Nos. 55, 94.) The court is persuaded that Mr. Christenson is a material
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witness to the relevant facts in this case. Plaintiff’s motion to compel the trial attendance of Mr.
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Christenson is therefore granted; the court will issue a timely writ ad testificandum to obtain the
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attendance of Mr. Christenson at trial.
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Plaintiff does not presently address the testimony of Jason Hogan, but again lists
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him as a witness. (Dkt. No. 99 at 4; Dkt. No. 100 at 2.) In his first request for an extension of
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time, plaintiff noted that Jason Hogan had been paroled. (Dkt. No. 95 at 1-2.) Plaintiff earlier
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filed Mr. Hogan’s declaration expressing his willingness to testify. (Dkt. No. 75 at 6-7; see also
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Dkt. No. 89 at 1.) Because Mr. Hogan is a willing, unincarcerated witness, no court action is
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required to obtain his attendance at trial. (See Dkt. Nos. 55, 94.)
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Plaintiff again states that he has not yet obtained an expert witness due to his
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indigent status, but states that he is attempting to obtain the assistance of counsel in this regard.
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(Dkt. No. 99 at 1.) No court action is required at this time. Plaintiff is referred to the court’s
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Pretrial Order, filed contemporaneously with this order, which sets forth the requirements for
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informing the court of any witnesses that are currently unlisted. (See Pretrial Order, “Witnesses,”
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Section “E.”)
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For the foregoing reasons, IT IS HEREBY ORDERED that:
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1. The court’s order to show cause filed June 7, 2011 (Dkt. No. 98) is discharged.
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2. Plaintiff’s motion to obtain the attendance of incarcerated witness Joshua
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Christenson (Dkt. No. 100) is granted; the court will issue a timely writ ad testificandum to
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obtain the attendance of Mr. Christenson at trial.
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SO ORDERED.
DATED: June 16, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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