The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER GRANTING AND DENYING PLAINTIFF'S MOTION FOR ATTENDANCE OF INCARCERATED WITNESSES
(Docs. 190, 191, 192, 193, 194, and 195)
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Donald Glass, a state prisoner proceeding pro se. This action is proceeding on Plaintiff's complaint, filed March 22, 2004, against Defendants Beer, Keener, Sloss, Morales, and Dill for violation of the Eighth Amendment, and against Defendants Beer, Keener, Sloss, Morales, Dill, Butts, Adkison, Gonzales, Castillo, Buckley, Streeter, Marshall, and Lloren for retaliation. December 28, 2009, Plaintiff filed motions requesting a court order directing Defendants to provide the Court and Plaintiff with the prison address and location of six incarcerated witnesses, who refused to testify voluntarily, that they be brought to court to attend trial. (Docs. 190, 191, 192, 193, 194, and 195.) Defendants filed their opposition to this motion January 12, 2010. (Doc. 197.) Plaintiff filed a reply February 16, 2010. (Doc. 203.)
Plaintiff essentially requests an order identifying the location of his six incarcerated witnesses and that they be brought to court to testify at the trial of this action. Plaintiff'S motions are CONSTRUED as motions for attendance of incarcerated witnesses.
The Second Scheduling Order delineated that Plaintiff must file any motion for incarcerated witnesses to attend the trial of this matter concurrent with his pretrial statement, on or before December 15, 2009. (Doc. 184, pp. 2-3.) Plaintiff's motions were filed December 28, 2009. (Docs. 190 - 195.) Under ordinary circumstances, Plaintiff's motions would be denied as untimely -- which Defendants raised in their opposition. However, January 8, 2010, Plaintiff filed a motion explaining that he had not been able to timely file his pretrial statement (and concurrent motions for attendance of incarcerated witnesses) because of racial tension, prisoner on prisoner violence, dense fog, power outages, and other security concerns which caused the facility in which he is housed to be on and off "lock down" such that, while he received a ducat to go to the law library on December 15, 2009, Plaintiff was not actually allowed access to the law library until December 21, 2009. (Doc. 196.) Plaintiff's proof of service notes that both his pretrial statement and his motions for attendance by unincarcerated witnesses were deposited with prison staff for mailing on December 21, 2009. (Doc. 192, p. 3.) Granting the leniencies accorded to a pro se inmate, Plaintiff's motions for attendance of incarcerated witnesses will be considered on the merits rather than summarily dismissed on procedural grounds.
As stated in the Second Scheduling Order,
An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot come to court unless the Court orders the warden or other custodian to permit the witness to be transported to court. The Court will not issue such an order unless it is satisfied that: (a) the prospective witness is willing to attend; and (b) 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 concurrent with the pre-trial statement 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, address, and prison identification number of each such witness; and (2) be accompanied by declarations showing that each witness is willing to testify and that each witness has actual knowledge of relevant facts. The motion should be entitled "Motion for Attendance of Incarcerated Witnesses."
The willingness of the prospective witness can be shown in one of two ways: (1) the party himself can swear by declaration under penalty of perjury that the prospective witness has informed the party that he or she is willing to testify voluntarily without being subpoenaed, in which declaration the party must state when and where the prospective witness informed the party of this willingness; or (2) the party can serve and file a declaration, signed under penalty of perjury by the prospective witness, in which the witness states that he or she is willing to testify without being subpoenaed.
The prospective witness's actual knowledge of relevant facts can be shown in one of two ways: (1) if the party has actual firsthand knowledge that the prospective witness was an eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in Plaintiff's cell and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may swear to the cellmate's ability to testify), the party himself can swear by declaration under penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a declaration signed under penalty of perjury by the prospective witness in which the witness describes the relevant facts to which the prospective witness was an eye- or ear-witness. Whether the declaration is made by the party or by the prospective ...