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Cooper v. Armstrong

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 26, 2009

AARON L. COOPER, PLAINTIFF,
v.
M. ARMSTRONG, DEFENDANT.

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has filed a renewed motion for the attendance of incarcerated witnesses. Plaintiff contends that inmates Young, K-60964, O'Neal, K-55280, Jimmerson, P-48480, and Robinson, J-92647 were the four inmates present at the pedestrian gate. Id. at 2. Plaintiff also contends that inmate Watts, C-90336, "was watching the escort because he told plaintiff he saw [the] take down." Id.

Defendant previously opposed the calling of these witnesses because they were allegedly present only during the initial altercation, not at the pedestrian gate.

Defendant previously provided the locations for these witnesses. One of them, former inmate Robinson, J-92647, has paroled. Thus, plaintiff must subpoena witness Robinson if plaintiff wants him to testify at trial.

The remaining four inmates are incarcerated, but plaintiff has not indicated whether any of these witnesses would be willing to testify voluntarily. Moreover, if they are not willing to testify voluntarily, plaintiff has not indicated whether he is financially able to pay the appropriate witness fees to insure their attendance at trial.

Because there is a dispute as to whether these incarcerated witnesses have firsthand knowledge of the events that took place at the pedestrian gate rather than during the initial altercation, the court will notify each witness to inquire whether the witness was present and, if so, whether the witness has pertinent testimony to offer and is willing to voluntarily testify on behalf of plaintiff. These witnesses will be required to respond within a date certain; the court will not issue the pretrial order until the issue of witnesses is resolved. Defendant will be required to provide the court with the last known address of witness Robinson, J-92647, in case plaintiff intends to subpoena his attendance at trial. Plaintiff will be required to inform the court whether he has sufficient funds to pay the appropriate witness fees and travel expenses for both witness Robinson and any incarcerated witness who refuses to testify voluntarily. 28 U.S.C. § 1821(b).

Accordingly, IT IS HEREBY ORDERED that:

1. Within thirty days from the date of this order, defendant shall provide the court with the last known address of witness Robinson, J-92647, who has paroled.

2. Within thirty days from the date of this order, plaintiff shall inform the court whether he has sufficient funds to pay witness fees and travel expenses for both witness Robinson and any incarcerated witness who refuses to testify voluntarily.

3. By separate order, the incarcerated witnesses will be required to notify the court whether they were witnesses and will testify voluntarily.

20090526

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