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Raymond Paul Nelson v. D.L. Runnels

April 20, 2011

RAYMOND PAUL NELSON, PLAINTIFF,
v.
D.L. RUNNELS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

The parties' pretrial statements, pending before the district judge, identify two matters that are properly addressed by the undersigned: (1) the inadequacy of plaintiff's declaration in support of his request to obtain the trial attendance of incarcerated witnesses; and (2) plaintiff's request for an extension of time within which to file an amended witness list that includes expert medical witnesses.

I. Trial Attendance of Incarcerated Witnesses

Plaintiff, a former state prisoner, has filed an affidavit in support of his request to obtain the attendance of two incarcerated witnesses who have agreed to testify at the trial in this action, scheduled to commence on August 16, 2011. However, plaintiff's affidavit (Dkt. No. 89) fails to meet the requirements set forth in this court's order filed May 27, 2009 (Dkt. No. 55). Therefore, plaintiff will be given the opportunity to file a new affidavit that conforms with the following requirements, and to file a written motion for a court order requiring that such witnesses be brought to court at the time of trial. Because plaintiff seeks the attendance of both incarcerated and unincarcerated witnesses, as explained in this court's prior order, the following information sets forth the procedures for obtaining the trial attendance of all witnesses:

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot come to court unless this court orders the warden or other custodian to permit the witness to be transported to court. This court will not issue such an order unless it is satisfied that:

1. The prospective witness is willing to attend; And

2. The prospective witness has actual knowledge of relevant facts.

With the pretrial statement, a party intending to introduce the testimony of incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file 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, CDC Identification number, and address of each such witness; And

2. Be accompanied by affidavits showing that each witness is willing to testify and that each witness has actual knowledge of relevant facts.

The willingness of the prospective witness can be shown in one of two ways:

1. The party himself can swear by affidavit that the prospective witness has informed the party that he or she is willing to testify voluntarily without being subpoenaed. The party must state in the affidavit when and where the prospective witness informed the party of this willingness; Or 2. The party can serve and file an affidavit sworn to by the prospective witness, in which the witness states that he or she is willing to testify without being subpoenaed.

The prospective witness' actual knowledge of relevant facts can be shown in one of two ways:

1. The party himself can swear by affidavit that the prospective witness has actual knowledge. However, this can be done only if the party has actual firsthand knowledge that the prospective witness was an eyewitness or an ear-witness to the relevant facts. For example, if an incident occurred in the plaintiff's cell and, at the time, the plaintiff saw that a cellmate was present and observed the incident, the plaintiff may swear to the cellmate's ability to testify. Or 2. The party can serve and file an affidavit sworn to 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 affidavit is made by the plaintiff or by the prospective witness, it must be ...


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