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Donald J. Ackley v. D. Carroll

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 27, 2011

DONALD J. ACKLEY,
PLAINTIFF,
v.
D. CARROLL, ET AL., DEFENDANTS.

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

ORDER DENYING MOTION AND DIRECTING THE CLERK OF THE COURT TO FILE MOTION UNDER SEAL

Plaintiff Donald J. Ackley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 9, 2011, Plaintiff submitted a motion to the Court requesting a continuance of the trial. The motion contains medical information regarding Plaintiff and will therefore be filed under seal. Plaintiff requests that the trial in this action be continued, two separate trials be conducted, waiver of witness fees, and a court order issue directing that his legal paperwork be returned to him or protected.*fn1 Plaintiff also includes a list of information that he is requesting. Initially, Plaintiff is informed that discovery in this action closed on January 20, 2010, and therefore his discovery requests are untimely.

Plaintiff requests that the Court conduct separate trials for the claims in this action because there are two defendants and separate incidents. The Federal Rules allow for separate trials "[f]or convenience, to avoid prejudice, or to expedite and economize." Fed. R. Civ. Proc. 42(b). Rule 42(b) confers broad discretion upon the district court to bifurcate a trial. Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021 (9 th Cir. 2004). In this action Plaintiff alleges that Defendant Carroll began to harass him and threatened to have other inmates attack Plaintiff. The claims against Defendant Wright are related to Plaintiff's allegation that Defendant Carroll had Plaintiff attacked by two inmates, during which Defendant Wright allegedly fired his non-lethal weapon to break up the fight. Since the claims in this action are related and the same witnesses will be necessary for trial, the Court does not find any additional convenience or efficiency would be reached by the requested bifurcation. Nor does the Court conclude that bifurcation is necessary to avoid prejudice. Therefore, Plaintiff's motion is denied.

With regard to Plaintiff's motion for a waiver of witness fees, the expenditure of public funds on behalf of an indigent litigant is proper only when authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) (citations omitted). The in forma pauperis statute does not authorize the Court to waive witness fees or expenses paid to those witnesses. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993); see 28 U.S.C. § 1915.

Plaintiff moves to have the trial in this action continued from January 24, 2012. On August 29, 2011, an order issued continuing the trial in this action until May 1, 2012. Accordingly, Plaintiff's motion for an extension of time is moot.

Based on the foregoing, it is HEREBY ORDERED that:

1. The Clerk of the Court shall serve a courtesy copy of the motion received September 9, 2011, on the Deputy Attorney General;

2. The Clerk of the Court is DIRECTED to file under seal Plaintiff's motion for an extension of time filed on September 9, 2011;

3. Plaintiff's motion for an extension of time is DENIED as moot; and

4. Plaintiff's motion for separate trials and waiver of witness fees is DENIED.

IT IS SO ORDERED.


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