IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 17, 2009
CHARLES CHATMAN, PLAINTIFF,
SERGEANT C. TYNER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER VACATING TELEPHONIC TRIAL CONFIRMATION HEARING AND TRIAL DATES
ORDER GRANTING REQUESTS FOR ADDITIONAL TIME IN WHICH TO FILE PRETRIAL STATEMENTS
ORDER CONCERNING DEFENDANT DURAN'S TESTIMONY
(Documents #155, #158, #159)
This action proceeds on Plaintiff Charles Chatman's Eighth Amendment claims concerning the conditions of his confinement and a First Amendment claim against Defendant Johnson. On April 1, 2009, the court issued its second scheduling order. This second scheduling order set trial for September 15, 2009 and a telephonic trial confirmation hearing for August 3, 2009. Defendants were ordered to file their pretrial statements by July 20, 2009.
On June 22, 2009, Defendant Duran filed a motion to continue the trial date or alternatively testify in this action by live video deposition. Defendant Duran states that he is currently in federal custody and will not be released until December of 2010. On July 13, 2009, the other defendants filed a statement of non-opposition to Defendant Duran's request.
Defendants contend that they too desire a continuance because Defendant Jimenez is off of work due to medical conditions. Given counsels' trial schedules, Defendants state it would be difficult to have a trial much earlier than Defendant Duran's requested date. Defendants decline to stipulate to depose Defendant Duran in Texas. On July 13, 2009, Plaintiff filed an acceptance of Defendant Duran's request to testify by video deposition. Plaintiff does not agree to a continuance. On July 16, 2009, Defendant Duran filed a reply brief. Defendant Duran argues Plaintiff will not be prejudiced by any trial delay because he will remain in custody.
On July 15, 2009, Defendants filed a request for an extension of time to file a pretrial statement until August 19, 2009.
On July 15, 2009, Defendant Duran filed a request for an extension of time in which to file a pretrial statement until August 4, 2009.
Good cause exists to allow all Defendants additional time in which to file their pretrial statements and to vacate the telephonic trial confirmation hearing. A review of the court's own schedule reveals that the undersigned cannot try this action on September 15, 2009. Thus, some delay in the trial date will be necessary. All Defendants' counsel desire additional time to interview witnesses and travel to California Correctional Institution in Tehachapi. Thus, all Defendants will be given until August 19, 2009 in which to file their pretrial statements.
The court has also reviewed Defendant Duran's request to continue the trial or testify by a video deposition. The court is not inclined to continue a trial for almost a year and a half, especially considering the fact this action was filed in 2003. While some continuance because of the court's and counsels' schedules, along with the medical concerns of one defendant, are valid reasons for a short continuance, the court declines to continue the trial until January 2011.
The court also declines to order the video deposition of Defendant Duran. Given Plaintiff's status in custody, it would be impossible for Plaintiff to attend a deposition in Texas. This courthouse is equipped with equipment to display a live video feed in the courtroom. The court requests Defendant Duran's counsel and the Attorney General review the possibility of having Defendant Duran testify from Texas during trial via live video feed. In addition, it may be possible to compel Defendant Duran's presence to testify at trial through a writ of habeas corpus ad testificandum.
Accordingly, the court ORDERS that:
1. Defendants' requests for an extension of time to file a pretrial statement are GRANTED.
2. Defendants SHALL file their pretrial statements by August 19, 2009;
3. The August 3, 2009 telephonic trial confirmation hearing and September 15, 2009 trial date are VACATED.
4. This matter is set for a telephonic hearing on August 31, 2009 at 3:00 p.m. to set a new trial date. The Deputy Attorney General assigned to this case is required to arrange for the call and initiate the hearing at (559) 499-5669.
5. Defendant Duran's motion to continue the trial until at least January 2011 or testify by way of video deposition is DENIED without prejudice to a renewed request once counsel obtains further information on other alternatives.
IT IS SO ORDERED.
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