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Moore v. Heisey

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 19, 2010

STEVE C. MOORE, PLAINTIFF,
v.
C/O HEISEY, DEFENDANT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER RESOLVING MOTION, REQUIRING PLAINTIFF TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED FOR FAILURE TO FILE PRETRIAL STATEMENT, AND RELIEVING DEFENDANT OF OBLIGATION TO FILE PRETRIAL STATEMENT THIRTY-DAY DEADLINE

(Docs. 38 and 39)

ORDER CONTINUING TELEPHONIC TRIAL CONFIRMATION HEARING FROM DECEMBER 14, 2010, AT 10:30 A.M. TO JANUARY 10, 2011, AT 10:30 A.M. (Doc. 38)

Plaintiff Steve C. Moore, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 19, 2008. This action is proceeding against Defendant Heisey on Plaintiff's Eighth Amendment excessive force claim, and is currently set for jury trial on February 7, 2011.

Pursuant to the scheduling order filed on May 17, 2010, Plaintiff's pretrial statement was due on or before October 26, 2010, and Defendant's pretrial statement is due on or before November 23, 2010. Plaintiff failed to file a pretrial statement, and shall be required to show cause why sanctions should not be imposed for failure to comply with the scheduling order. Defendant is relieved of his obligation to file his pretrial statement pending resolution of this issue, and the telephonic trial confirmation hearing shall be continued.

Regarding the scheduling order, which sets forth the requirements for obtaining the participation of witnesses at trial, on June 28, 2010, Plaintiff filed a motion seeking guidance regarding witness Michael Moppin. Plaintiff stated that he is unsure if Mr. Moppin is incarcerated and he does not have the $40.00 witness fee.

If Mr. Moppin is incarcerated, Plaintiff is not required to pay the $40.00 witness fee. However, Plaintiff must provide a CDCR number or birth date so that Mr. Moppin can be located within the prison system. If Mr. Moppin is not incarcerated, payment of $40.00 witness fee is required and the fee cannot be waived based on indigency, as explained in the scheduling order. Further, Plaintiff is required to provide an address for service of the subpoena duces tecum on Mr. Moppin. Neither the Court nor the United States Marshal can conduct an investigation into Mr. Moppin's whereabouts on Plaintiff's behalf, although, as previously stated, the Court will be able to locate him if he is incarcerated and Plaintiff provides a CDCR number or birth date.

For the reasons set forth herein, it is HEREBY ORDERED that:

1. Plaintiff's motion regarding witness issues, filed June 28, 2010, is deemed resolved;

2. Plaintiff shall show cause within thirty (30) days why sanctions should not be imposed for failure to file a pretrial statement;

3. Defendant is relieved of his obligation to file his pretrial statement; and 4. The telephonic trial confirmation hearing is continued from December 14, 2010, at 10:30 a.m. to January 10, 2011, at 10:30 a.m.

IT IS SO ORDERED.

20101119

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