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Malik Jones v. J. Mcguire

May 6, 2013

MALIK JONES, PLAINTIFF,
v.
J. MCGUIRE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, a state prisoner, proceeds pro se with a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff has filed a motion for order to subpoena eight inmate witnesses for trial. (Dkt. No. 85.) Defendant opposes the motion, stating that plaintiff should not be allowed to call these inmate witnesses because he failed to disclose their identity in response to interrogatories propounded on plaintiff by defendant. (Dkt. No. 86.)

A motion for subpoena is not the proper method for plaintiff to attempt to secure the attendance of inmate witnesses at trial. Rather, the proper procedure for a pro se incarcerated plaintiff is to seek a writ of habeas corpus ad testificandum concurrently with the filing of the plaintiff's pre-trial statement. As plaintiff was notified in the January 11, 2011 scheduling order with regard to securing the attendance of incarcerated witnesses at trial:

It is the plaintiff's responsibility to produce all of the evidence to prove his case, 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 trial and available to testify.

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

An incarcerated witness who agrees to voluntarily attend trial 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.

With the pretrial statement, a party intending to introduce the testimony of incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for a court order requiring that such witnesses be brought to court at the time of the trial. 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 prospective witness can be shown in one of two ways:

1. The party intending to introduce the testimony can swear by affidavit that the prospective witness has informed the party that he or she is willing to testify voluntarily without being subpoenaed. The party must state in the affidavit when and where the prospective witness informed the party of this willingness; or

2. The party can serve and file an affidavit sworn to by the prospective witness, in which the witness states that he or she is willing ...


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