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John Francis v. Baca

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 12, 2012

JOHN FRANCIS, PLAINTIFF,
v.
BACA, STREET, REICHERT, AND POMAZZAL, DEFENDANTS.

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

ORDER

Plaintiff is a state prisoner proceeding without counsel. On May 29, 2012, plaintiff filed a motion for the attendance of inmate witnesses at trial. Plaintiff previously submitted declarations from inmates Mason, Breaux, Benge, Lachenauer, and Ludlow. However, as noted in this court's April 27, 2012 order, inmate Ludlow failed to articulate that he has knowledge of specific facts relevant to the instant action. Accordingly, plaintiff's motion to call inmate Ludlow as a witness is denied.

Moreover, as of June 7, 2012, California Department of Corrections and Rehabilitation ("CDCR") Inmate Locator*fn1 has no record of inmates Mason, Benge, and Lachenauer. Because it appears these inmates are no longer incarcerated, no writ of habeas corpus ad testificandum is required. Plaintiff concedes he is unaware of these individuals' whereabouts, so the court will not include them on plaintiff's witness list.

As to inmate Neil Joseph Breaux, Inmate #K-90033, CDCR inmate locator reflects he is incarcerated at California Correctional Center ("CCC"), in Susanville, California. Plaintiff has provided a declaration from inmate Breaux indicating he has relevant testimony to offer in this case, but that because plaintiff has lost touch with inmate Breaux, the court should presume inmate Breaux is unwilling to testify. However, if inmate Breaux is unwilling to testify, plaintiff must pay the daily witness fee of $40.00 and mileage expenses. Therefore, the court will issue a notice to the litigation coordinator at CCC, by separate order, to ascertain whether or not inmate Breaux is willing to testify voluntarily on plaintiff's behalf.

In his pretrial statement, plaintiff also seeks to call as witnesses Dr. Mendoza, Dr. Newmen, Dr. Snell, Dr. Roach, Dr. Starravich, Dr. Ling, Dr. Hershberger, and Dr. Patterson. None of these witnesses are included on defendants' proposed witness list. As noted in this court's April 27, 2012 order, if any of these potential witnesses have agreed to voluntarily testify on behalf of plaintiff, no further action is required. (Dkt. No. 77 at 4.) However, if any of these potential witnesses refuse to testify voluntarily, plaintiff must subpoena them for trial, and if he fails to do so, they will not be called to testify. With that understanding, these witnesses will be included on plaintiff's witness list, provided plaintiff follows the instructions set forth in the April 27, 2012 order. Plaintiff may, of course, call witnesses included on defendants' witness list.

Plaintiff also seeks to admit the declarations of inmates Mason, Breaux, Benge, Lachenauer, and Ludlow. However, because only inmate Breaux is being called to testify as a witness, only inmate Breaux' declaration will be included on plaintiff's exhibit list.

Finally, on April 27, 2012, the court directed defendants to identify plaintiff's exhibits that might be authenticated by defendants' Custodian of Records, and identify the appropriate Custodian of Records to authenticate records from plaintiff's prison files. On May 25, 2012, defendants filed their response. Defendants are willing to stipulate to the authenticity of plaintiff's exhibits C, D, E, F, G, H, I and J. Defendants identified several other exhibits, and documents within specific exhibits, that defendants are unable to authenticate because the documents pre-date defendants' August 2007 subpoena, were illegible, or were not included in plaintiff's central file. (Dkt. No. 78 at 3.) Plaintiff is cautioned that if he intends to pursue admission of the exhibits to which defendants are unable to stipulate to authenticate, plaintiff must provide authentication for their admission at trial. Defendants confirm that the Custodian of Records at California State Prison, Corcoran, can authenticate records from plaintiff's Unit Health Record or Central File.

Accordingly, IT IS HEREBY ORDERED that plaintiff's May 29, 2012 motion for the attendance of inmate witnesses at trial (dkt. no. 79) is granted as to inmate Neil J. Breaux, but denied in all other respects.


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