The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING REQUEST AND SETTING DEFENDANTS' MOTION TO DISMISS FOR AN EVIDENTIARY HEARING
ORDER VACATING DEFENDANTS' MOTION TO DISMISS FROM COURT'S CALENDAR FOR THIS REPORTING PERIOD (Doc. 59)
Pursuant to the Court's order filed March 12, 2009, Defendants filed a renewed motion to dismiss for failure to exhaust and requested an evidentiary hearing due to the existence of factual disputes and witness credibility issues. Pavey v. Conley, 544 F.3d 739, 740-42 (7th Cir. 2008); Bryant v. Rich, 530 F.3d 1368, 1373-77 (11th Cir. 2008). (Docs. 49, 57, 59.) Following the filing of the reply on January 4, 2010, this matter is ready to be placed on the Court's hearings calendar. A writ directing that Plaintiff be transported for the hearing will be issued closer to the hearing date of April 21, 2010.
If Plaintiff wishes to seek the attendance of any incarcerated witnesses to testify on his behalf during the hearing, he must file a motion within thirty days. The witness must be able to testify to information that is relevant to Plaintiff's contention that he followed the proper prison procedures and attempted to timely file an inmate appeal to exhaust his claim. This means the witness saw or heard something relevant, or has relevant information regarding the prison's procedure for submitting appeals, etc. Plaintiff must provide the name and CDCR number for each witness, and must set forth what relevant information each proposed witness possesses.
Plaintiff may also seek the attendance of unincarcerated witnesses such as correctional officers. However, unincarcerated witnesses must be paid a daily witness fee of $40.00 and must be reimbursed for roundtrip mileage. 28 U.S.C. § 1821. There is no fund available to pay these fees on Plaintiff's behalf. See 28 U.S.C. § 1915; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989). Therefore, the Court will direct the United States Marshal to serve unincarcerated witnesses with subpoenas to appear at the hearing only if Plaintiff submits a money order, for each witness sought, made payable to the witness for $40.00 plus mileage. Plaintiff must notify the Court within thirty days if he has the funds to subpoena unincarceated witnesses and if so, what the witnesses' names are and where the witnesses are located. The Court will calculate the mileage for Plaintiff and notify him of the amount he owes. Because the Marshal needs adequate time to personally serve the subpoenas, it is very important that Plaintiff comply with the thirty-day deadline to notify the Court of the availability of funds and desire to subpoena unincarcerated witnesses.
Plaintiff and Defendants shall submit their proposed witness lists and exhibit lists to the Court on or before March 22, 2010. Neither side is required to call every witness on their list, but Plaintiff may call or cross-examine any of Defendants' witnesses who are present for the evidentiary hearing.
Finally, in light of 28 U.S.C. § 476(a)(1), the Civil Justice Reform Act, Defendants' motion to dismiss is deemed vacated from the Court's calendar for this reporting period in light of the necessity of the evidentiary hearing to resolve the motion. Neither side need take action on this administrative matter. The motion will be resolved via a Findings and Recommendations from the undersigned and an Order from the Honorable Anthony W. Ishii following the hearing on April 21, 2010.
Accordingly, it is HEREBY ORDERED that:
1. An evidentiary hearing is set for April 21, 2010, at 9:00 a.m. before the undersigned in Courtroom 10;
2. Plaintiff's motion for the attendance of incarcerated witnesses, if any, must be filed within thirty (30) days from ...