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Wade v. County of Sacramento

April 1, 2009

CHANCELLOR WADE, PLAINTIFF,
v.
COUNTY OF SACRAMENTO, ET AL., DEFENDANTS.



ORDER AND FURTHER SCHEDULING ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On January 21, 2009, the court filed findings and recommendations recommending that this action be dismissed without prejudice due to plaintiff's failure to file his pretrial statement as ordered by the court on November 24, 2008. Plaintiff filed objections along with his pretrial statement on January 28, 2009. Good cause appearing, the court will, by this order, vacate the findings and recommendations and set a new schedule for this litigation.

Defendants will be required to file a pretrial statement in accordance with the schedule set forth below. In addition, the court will order plaintiff to file a motion to obtain the attendance of witnesses. On January 28, 2009, plaintiff filed a document styled, "Writ of Habeas Corpus Ad Testificandum," in which plaintiff requested the attendance of inmate witness Dale Robinson. Plaintiff's request does not comply with the court's October 10, 2008 order concerning prospective witnesses. The requirements are set forth below.

At the trial of this case, the plaintiff must be prepared to introduce evidence to prove each of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is the plaintiff's responsibility to produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or witness testimony. If the plaintiff wants to call witnesses to testify, he must follow certain procedures to ensure that the witnesses will be at the trial and available to testify.

I. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily

An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot come to court unless this court orders the warden or other custodian to permit the witness to be transported to court. This court will not issue such an order unless it is satisfied that:

1. The prospective witness is willing to attend; and

2. The prospective witness has actual knowledge of relevant facts.

A party intending to introduce the testimony of incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for a court order requiring that such witnesses be brought to court at the time of trial.

The motion must:

1. State the name and address of each such witness; and

2. Be accompanied by affidavits showing that each witness is willing to testify and that each witness has actual knowledge of relevant facts.

The willingness of the prospective witness can be shown in one of two ways:

1. The party can swear by affidavit that the prospective witness has informed the party that he is willing to testify voluntarily without being subpoenaed. The party must state in the affidavit when and where the prospective witness informed the party of this willingness; or

2. The party can serve and file an affidavit sworn to by the prospective witness, in which the witness states that he or she is willing ...


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