Redmond v. Rodriguez, et al
Filing
60
ORDER signed by Magistrate Judge Edmund F. Brennan on 11/29/2011 ORDERING that within 30 days, plaintiff shall file a pretrial statement and any motions necessary to obtain trial witnesses; defendants shall file a pretrial statement not later than 30 days after the filing of plaintiff's statement; the pretrial conference will be conducted on the file only; and the date for jury trial before the assigned district judge will be set in the pretrial order. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CESARE REDMOND,
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Plaintiff,
No. CIV S-07-0021 MCE EFB P
vs.
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W.A. RODRIGUEZ, et al.,
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Defendants.
ORDER DIRECTING THE FILING OF
PRETRIAL STATEMENTS
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. Pursuant to the April 26, 2010 discovery and scheduling order, the deadline for
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filing dispositive motions was October 15, 2010. Defendants filed a motion for summary
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judgment on October 15, 2010. On October 5, 2011, the assigned district judge adopted the
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undersigned’s findings and recommendations, which recommended that defendants’ motion be
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denied. This action therefore proceeds on plaintiff’s claims that defendants Rodriguez and
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Valadez delayed and/or denied plaintiff medical treatment for his asthma, and were thus
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deliberately indifferent to plaintiff’s serious medical needs in violation of the Eighth
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Amendment. The court now directs the parties to file pretrial statements in accordance with
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Local Rule 281.
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Plaintiff is hereby advised that failure to comply with the procedures set forth below may
result in the preclusion of any and all witnesses named in his pretrial statement.
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At trial, plaintiff must be prepared to introduce evidence to prove each of the alleged
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facts in support of his claims. Trial evidence generally takes the form of: (a) exhibits; and (b)
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witness testimony. It is plaintiff’s responsibility to produce all of the evidence to prove his case,
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whether that evidence is in the form of exhibits or witness testimony. If plaintiff wants to call
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witnesses to testify, he must follow certain procedures to ensure that the witnesses will be at the
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trial and available to testify.
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The following procedures apply for calling witnesses:
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I.
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Obtaining Attendance of an Incarcerated Witness Who Intends to Testify
Voluntarily
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A witness who is willing to testify without the compulsion of a subpoena, but who is
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imprisoned or incarcerated, cannot appear to testify without a court order directing the custodian
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to produce him at the time of trial. The court will issue such an order only upon a showing that
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the witness has agreed to testify voluntarily and has actual knowledge of relevant facts.
Therefore, a party intending to introduce testimony from such a witness must file with his
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pretrial statement a motion for an order directing the witness’s custodian to produce the witness
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for trial. The motion must:
1. Identify the witness by name, California Department of Corrections and Rehabilitation
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number, and address;
2. Include affidavits showing that the witness intends to testify voluntarily. This
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intention can be shown as follows:
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A. The party can swear by affidavit that the witness has communicated to him an
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intention to testify voluntarily. The affidavit must include a statement of when and where the
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prospective witness informed the party of this willingness; or
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B. The witness can swear by affidavit that he is willing to testify without the
compulsion of subpoena.
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.
3. Include affidavits showing each witness has actual knowledge of relevant facts. The
witness’s knowledge can be shown as follows:
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A. The party can swear that he knows the witness saw or heard relevant facts.
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For example, if something occurred in plaintiff’s cell and plaintiff saw that a cell-mate was
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present and observed the incident, then plaintiff may swear to the cell-mate’s ability to testify;
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or,
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B. The witness can swear to the relevant facts he observed.
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Any such affidavit must describe the incident, state when it occurred, where it occurred,
who was present, and how the witness was in a position to see or to hear what 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.
Obtaining Attendance of an Incarcerated Witness Who Refuses to Testify
Voluntarily
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If a party seeks to present testimony of an imprisoned or incarcerated witness who does
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not intend to testify voluntarily, the party must with his pretrial statement file a motion for an
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order directing that witness to appear. Such a motion must comply with the requirements
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explained above but the movant must demonstrate that any such witness does not intend to
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testify voluntarily.
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III.
Obtaining Attendance of an Unincarcerated Witness Who Agrees to Testify
Voluntarily
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A party need not obtain an order to produce an unincarcerated witness who intends to
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testify voluntarily. However, the party is responsible for ensuring attendance of such a witness.
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IV.
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Obtaining Attendance of Unincarcerated Witnesses Who Refuse to Testify
Voluntarily
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To obtain the presence of a witness who is at liberty and who refuses to testify
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voluntarily, the party who intends to present that witness’s testimony, and who proceeds in
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forma pauperis, must complete a subpoena and submit it to the court. Blank subpoena forms
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may be obtained from the Clerk of the Court. Completed subpoenas must be submitted not
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earlier than four weeks and not later than two weeks before trial. Along with a completed
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subpoena, the party must also tender a money order payable to the witness in the amount of the
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daily witness fee, $40.00, plus the witness’s travel expenses. The court will not order the
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United States Marshal to serve a subpoena upon an unincarcerated witness without the witness
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fee and travel expenses having been tendered. No statute authorizes the use of public funds for
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expenses in civil cases and so even a plaintiff proceeding in forma pauperis must tender such
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fees. Upon receipt of a completed subpoena and money order, the court will then forward those
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materials to the United States Marshal for service upon the witness.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Within thirty days of the date of this order, plaintiff shall file and serve a pretrial
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statement and any motions necessary to obtain the attendance of witnesses at trial. Plaintiff is
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advised that failure to file a pretrial statement in accordance with this order may result in the
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imposition of sanctions, including dismissal of this action.
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2. Defendants Rodriguez and Valadez shall file a pretrial statement not later than thirty
days after the filing of plaintiff’s statement.
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3. Pretrial conference (as described in Local Rule 282) will be conducted on the file
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only, without appearance by either party.
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4. The date for jury trial before the assigned district judge will be set in the pretrial
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order.
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DATED: November 29, 2011.
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