UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 11, 2011
A. MASIEL, ET AL.,
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER NOTIFYING PLAINTIFF OF WITNESS FEES AND COSTS DUE TO SUBPOENA UNINCARCERATED WITNESSES WHO REFUSE TO TESTIFY VOLUNTARILY (ECF No. 87)
Plaintiff Robert Garcia ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is set for jury trial on November 15, 2011, before the Honorable Anthony W. Ishii. Pursuant to the Court's scheduling order filed on April13, 2011, Plaintiff was informed that if he wishes to have the Marshal serve any unincarcerated witnesses who refuse to testify voluntarily, he must submit money orders for the witnesses to the Court no later than August 5, 2011. *fn1 (Second Scheduling Order 4:11-14, ECF No. 81.) On August 8, 2011, Plaintiff filed notices of the names and locations of two unincarcerated witnesses he wishes to have testify at trial.
Plaintiff requests the attendance of Dr. De Alemida, who is employed at California Medical Facility-Vacaville ("CMF"), and Sgt. Davis, who is employed at the California Substance Abuse Treatment Facility-Corcoran ("CSATF"). Plaintiff is notified that for Dr. De Almeida he must submit a money order in the amount of $227.58, made payable to witness. *fn2 Plaintiff is notified that for Sgt. Davis he must submit a money order in the amount of $97.43. *fn3 Money orders, made payable to witness, must be submitted to the Court no later than September 9, 2011. No witness will be served with a subpoena absent the timely submission of a money order. Plaintiff's notice was not submitted until August 8, 2011, and the untimeliness of the notice leaves Plaintiff less time to obtain and submit money orders than he would otherwise have had. Plaintiff's late notice does not provide a ground to extend any deadlines set in the scheduling order. Fed. R. Civ. P. 16(b)(4).
To the extent Plaintiff is unsure where the witness is currently located, the Court and the Marshal cannot and will not conduct an investigation on Plaintiff's behalf. Ascertaining the location of Plaintiff's non-incarcerated witnesses is Plaintiff's responsibility. If Plaintiff submits the money orders as required, the Court will direct the Marshal to serve the witnesses at the location provided by Plaintiff, which, at this time, is CMF-Vacaville and CSTAF-Corcoran.
Accordingly, pursuant to the Second Scheduling Order, if Plaintiff wishes to have Dr. De Almeida and Sgt. Davis served with summonses to testify at trial, he must submit, for each witness, a money order made out to that witness in the amount of $227.28 for Dr. Almeida and $97.43 for Sgt. Davis.
The Court cannot accept cash, and the money orders may not be made out to the Court. The money orders must be made out in the witness's name.
IT IS SO ORDERED.