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Darryl Hubbard v. C.D. Hougland

April 27, 2012

DARRYL HUBBARD, PLAINTIFF,
v.
C.D. HOUGLAND, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On September 22, 2010, defendant's motion to dismiss for failure to exhaust administrative remedies was granted and this case was closed. Plaintiff stated he attempted to exhaust his administrative remedies but prison authorities were discarding his appeals and not logging them even though many of his other appeals were properly logged. The undersigned found the plaintiff's arguments could not overcome the motion to dismiss and noted that an evidentiary hearing would not have been of help. However, the Ninth Circuit reversed and remanded and ordered an evidentiary hearing to be held. Therefore an evidentiary hearing will be held on August 14, 2012, at 9:00 am before the undersigned who makes the following ORDERS:

1. The evidentiary hearing will be held on August 14, 2012, at 9:00 am before the undersigned;

2. No later than 45 days prior to the evidentiary hearing, defendant shall inform the court if plaintiff's facility will be able to provide video conferencing so plaintiff may appear by video.

3. At the evidentiary hearing, plaintiff must be prepared to introduce evidence. In general, there are two kinds of evidence: (1) exhibits and (2) the testimony of witnesses. It is the plaintiff's responsibility to produce all of the evidence, whether that evidence is in the form of exhibits or witness testimony. If the plaintiff wants to call witnesses to testify, he must follow certain procedures to ensure that the witnesses will be at the hearing and available to testify.

4. As to Witnesses: on or before June 29, 2012, the parties shall provide witness

lists.

A. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily

An incarcerated witness who agrees voluntarily to attend the hearing 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.

A party intending to introduce the testimony of incarcerated witnesses who have agreed voluntarily to attend the hearing must serve and file a written motion for a court order requiring that such witnesses be brought to court at the time of the hearing. 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 ...


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