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Donald J. Ackley v. D. Carroll

January 18, 2012

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



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION AND MOTION TO AMEND THE SCHEDULING ORDER AND DEEMING PLAINTIFF'S MOTION FOR THE ATTENDANCE OF WITNESSES AND PRETRIAL STATEMENT AS TIMELY SUBMITTED (ECF Nos. 82, 84) ORDER DENYING PLAINTIFF'S MOTION FOR THE ATTENDANCE OF INCARCERATED WITNESSES (ECF No. 82) ORDER REQUIRING PLAINTIFF TO SUBMIT WITNESS FEES BY APRIL 13, 2012

I. Background

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. Following the resolution of Defendants' motion for summary judgment, this action is proceeding on Plaintiff's complaint, filed June 19, 2006, against Defendant Wright for excessive force in violation of the Eighth Amendment, and Defendant Carroll for retaliation based on an incident that occurred on October 14, 2007, in violation of the First Amendment. This action is currently set for jury trial on June 26, 2012.*fn1 (ECF No. 1.)

On December 13, 2011, an order issued denying Plaintiff's motion to amend the scheduling order. (ECF No. 79.) On December 21, 2011, Plaintiff filed objections to the order denying his motion to amend the scheduling order. (ECF No. 82.) On December 30, 2011, Plaintiff filed a pretrial statement. (ECF No. 81.) On January 3, 2012, Plaintiff filed a second objection to the order denying his motion to amend the scheduling order. (ECF No. 84.)

II. Motion for Reconsideration and Motion to Amend the Scheduling Order

In his objections filed December 21, 2011, which the court construes as a motion for reconsideration, Plaintiff states that he was in the hospital until October 24, 2011, and his personal property, including his legal work, was lost. Plaintiff's objection includes the witnesses that he wishes to be included at trial.

In his objections dated January 3, 2012, which the Court construes as a motion to amend the scheduling order, Plaintiff states that he was not able to file his pretrial statement because he was being held in a mental hospital and did not have access to a paper and pencil until December 8, 2011. Plaintiff requests an amendment of the scheduling order to allow him to file his pretrial statement and a payment plan to bring his witnesses to court. The Court finds good cause to amend the scheduling order and will consider Plaintiff's motion for the attendance of incarcerated witnesses, filed December 21, 2011, and his pretrial statement, filed December 30, 2011 as timely filed.

III. Motion for the Attendance of Witnesses*fn2

A. Incarcerated Witnesses

Plaintiff requests the attendance of inmates Robert Smith, CDCR No. D-00616 or CDCR No. D-00016; King, Rusk, and Chris Water. In the second scheduling order, issued July 15, 2011, the procedures to obtain the attendance of incarcerated witnesses was set forth. (ECF No. 59.) Plaintiff was informed that to obtain the attendance of incarcerated witnesses at trial he must serve "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." (Id. at 2:14-19.)

In determining whether to grant Plaintiff's motion for the attendance of inmates factors to be taken into consideration include (1) whether the inmate's presence will substantially further the resolution of the case, (2) the security risks presented by the inmate's presence, (3) the expense of transportation and security, and (4) whether the suit can be stayed until the inmate is released without prejudice to the cause asserted. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (district court did not abuse its discretion when it concluded the inconvenience and expense of transporting inmate witness outweighed any benefit he could provide where the importance of the witness's testimony could not be determined), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).

Plaintiff's motion is devoid of any information regarding the testimony inmates Smith or Water would offer at trial. The Court is unable to determine if either inmate Smith or Water was an eye or ear witness to the events at issue in this action and therefore the relevancy of any testimony proffered by inmate Smith or Water cannot be determined.

Plaintiff states that inmates King and Rusk were both working "PIA mental fatl [sic]" on the day in question. This information is insufficient to allow a determination if the inmate was an eye or ear witness or possesses relevant knowledge of the incidents at issue in this action. Additionally, Plaintiff has failed to provide the CDCR number of inmates King, Rusk, and Water and the Court is unable to determine where the inmates are housed. Since the Court is unable to determine if the inconvenience and expense of transporting these inmate witnesses would outweigh the ...


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