UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 27, 2013
SGT. D. REEVES, DEFENDANT.
The opinion of the court was delivered by: Barbara A. McAuliffe _ United States Magistrate Judge
ORDER PARTIALLY GRANTING PLAINTIFF'S MOTION FOR ATTENDANCE OF UNINCARCERATED WITNESSES (ECF No. 110) DEADLINE TO SUBMIT WITNESS FEES: April 15, 2013
Plaintiff Robert Gonzales Saenz ("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 proceeding against Defendant Reeves for retaliation in violation of the First Amendment and deliberate indifference to conditions of confinement in violation of the Eighth Amendment. The matter is set for jury trial on June 18, 2013.
In the second scheduling order issued on September 14, 2012, Plaintiff was notified that in order to obtain the attendance of unincarcerated witnesses who refuse to testify voluntarily, he must notify the Court in writing of the name and location of each unincarcerated witness. On January 14, 2013, Plaintiff filed a motion for the attendance of unincarcerated witnesses. (ECF No. 110.) Defendant Reeves filed an opposition on January 29, 2013. (ECF No. 111.)
II. Motion for the Attendance of Unincarcerated Witnesses
Plaintiff moves for the attendance of Defendant Reeves, Correctional Lieutenant J. Brown, Correctional Officer R. Milam, Correctional Officer J. Perez and Forensic Examiner C. Felix at the trial of this matter. In opposition, Defendant Reeves notes that he is the named defendant in this action and is not subject to the motion. Defendant objects to the remaining witnesses because Plaintiff has not provided any information regarding their purported testimony. Defendant contends that Plaintiff has made no showing that these witnesses have relevant and admissible testimony. Defendant further objects because Plaintiff failed to identify any witnesses in discovery.
As Defendant correctly notes, a motion for his attendance at trial is unnecessary. Accordingly, Plaintiff's motion for the attendance of Defendant Reeves is denied as moot.
With regard to Plaintiff's request for the attendance of the remaining unincarcerated witnesses, the Court cannot make a finding at this time regarding the issue of whether these witnesses possess relevant testimony. Either the witnesses must file a motion to quash any subpoena to avoid appearing at trial or Defendant Reeves must file a motion in limine to exclude their testimony. Accordingly, if Plaintiff wishes to have Correctional Lieutenant J. Brown, Correctional Officer R. Milam, and Correctional Officer J. Perez be served at Kern Valley State Prison with summonses to testify at trial, he must submit, for each witness, a money order made out to that witness in the amount of $131.19, by April 15, 2013.*fn1 If Plaintiff wishes to have C. Felix, a forensic examiner, served at Fresno Community Hospital with a summons to testify at trial, he must submit a money order made out to the witness in the amount of $40.57, by April 15, 2013.*fn2
No witness will be served with a subpoena absent the timely submission of a money order.
Based on the foregoing, it is HEREBY ORDERED as follows:
1. Plaintiff's motion for the attendance of Defendant Reeves is DENIED as moot;
2. To have Correctional Lieutenant J. Brown, Correctional Officer R. Milam, and Correctional Officer J. Perez served with summonses to testify at trial, Plaintiff must submit, for each witness, a money order made out to that witness in the amount of $131.19, by April 15, 2013;
3. To have C. Felix served with a summons to testify at trial, Plaintiff must submit a money order made out to that witness in the amount of $40.57, by April 15, 2013; and
4. 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.