United States District Court, E.D. California
SECOND SCHEDULING ORDER ORDER REQUIRING DEFENDANTS TO
NOTIFY COURT WITHIN THIRTY DAYS WHETHER THEY CONSENT TO
MAGISTRATE JUDGE JURISDICTION ORDER DIRECTING CLERK'S
OFFICE TO SEND LOCAL RULE 281 TO PLAINTIFF AND CONSENT FORM
TO DEFENDANTS
Plaintiff
Jamisi Jermaine Calloway (“Plaintiff”) is a state
prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983, against defendants Correctional Officers
W. Hayward and J. Oaks (“Defendants”), for use of
excessive force against Plaintiff, in violation of the Eighth
Amendment of the United States Constitution.
On
March 24, 2014, based on Plaintiff’s multiple
representations at the March 21, 2014 trial confirmation
hearing that he was incapable and unable to proceed to trial
in this matter, the Court made a sua sponte motion
to dismiss this case and granted the motion. (ECF No. 147.)
On April 4, 2014, Plaintiff appealed the dismissal to the
Ninth Circuit Court of Appeals. (ECF No. 150.) On June 6,
2016, the Ninth Circuit vacated the order dismissing the case
and remanded the case in part. (ECF No. 159.) On July 11,
2016, the Ninth Circuit issued the Mandate. (ECF No. 163.)
The case is now reopened at the District Court.
Before
the dismissal of this case on March 24, 2014, the case was
ready for trial, to commence on April 22, 2014 before
District Judge Lawrence J. O’Neill. The parties had
filed their pretrial statements, (ECF Nos. 137, 140), and the
telephonic trial confirmation hearing was underway.
At this
time, pursuant to Rule 16(b) of the Federal Rules of Civil
Procedure, the Court will, by this order, set a further
schedule for this litigation. The parties are required to
file new pretrial statements in accordance with the schedule
set forth herein. In addition to the matters already required
to be addressed in the pretrial statement in accordance with
Local Rule 281, Plaintiff will be required to make a
particularized showing in order to obtain the attendance of
witnesses. The procedures and requirements for making such a
showing are outlined in detail below. Plaintiff is advised
that failure to comply with the procedures set forth below
may result in the preclusion of any and all witnesses named
in his pretrial statement.
At the
trial of this case, Plaintiff must be prepared to introduce
evidence to prove each of the alleged facts that support the
claims raised in the lawsuit. In general, there are two kinds
of trial evidence: (1) exhibits and (2) the testimony of
witnesses. It is 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 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.
1.
Procedures for Obtaining Attendance of Incarcerated
Witnesses Who Agree to Testify Voluntarily - An
incarcerated witness who agrees voluntarily to 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: (a) the prospective
witness is willing to attend; and (b) 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 trial
must serve and file concurrent with the pretrial
statement 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. The motion should be entitled "Motion
for Attendance of Incarcerated Witnesses." The
willingness of the prospective witness can be shown in one of
two ways: (1) the party himself can swear by declaration
under penalty of perjury that the prospective witness has
informed the party that he or she is willing to testify
voluntarily without being subpoenaed, in which declaration
the party must state when and where the prospective witness
informed the party of this willingness; or (2) the party can
serve and file a declaration, signed under penalty of perjury
by the prospective witness, in which the witness states that
he or she is willing to testify without being subpoenaed.
The
prospective witness’s actual knowledge of relevant
facts can be shown in one of two ways: (1) if the party has
actual firsthand knowledge that the prospective witness was
an eyewitness or an ear-witness to the relevant facts (i.e.,
if an incident occurred in Plaintiff’s cell and, at the
time, Plaintiff saw that a cellmate was present and observed
the incident, Plaintiff may swear to the cellmate’s
ability to testify), the party himself can swear by
declaration under penalty of perjury that the prospective
witness has actual knowledge; or (2) the party can serve and
file a declaration signed under penalty of perjury by the
prospective witness in which the witness describes the
relevant facts to which the prospective witness was an eye-
or ear-witness. Whether the declaration is made by the party
or by the prospective witness, it must be specific about the
incident, when and where it occurred, who was present, and
how the prospective witness happened to be in a position to
see or to hear what occurred at the time it occurred.
The
Court will review and rule on the motion for attendance of
incarcerated witnesses, specifying which prospective
witnesses must be brought to Court. Subsequently, the Court
will issue the order necessary to cause the witness’s
custodian to bring the witness to Court.
Motions
for the attendance of incarcerated witnesses, if any, must be
filed on or before October 18, 2016. Oppositions, if any,
must be filed on or before November 18, 2016.
2.
Procedures for Obtaining Attendance of Incarcerated
Witnesses Who Refuse to Testify Voluntarily - If a party
seeks to obtain the attendance of incarcerated witnesses who
refuse to testify voluntarily, the party should submit with
his pretrial statement a motion for the attendance of such
witnesses. Such motion should be in the form described above.
In addition, the party must indicate in the motion that the
incarcerated witnesses are not willing to testify
voluntarily.
3.
Procedures for Obtaining Attendance of Unincarcerated
Witnesses Who Agree to Testify Voluntarily - It is the
responsibility of the party who has secured an unincarcerated
witness’s voluntary attendance to notify the witness of
the time and date of trial. No action need be sought or
obtained from the Court.
4.
Procedures for Obtaining Attendance of Unincarcerated
Witnesses Who Refuse to Testify Voluntarily - If a
prospective witness is not incarcerated, and he or she
refuses to testify voluntarily, the witness must be served
with a subpoena. Fed.R.Civ.P. 45. In addition, the party
seeking the witness’s presence must tender an
appropriate sum of money for the witness. Id. In the
case of an unincarcerated witness, the appropriate sum of
money is the daily witness fee of $40.00 plus the
witness's travel expenses. 28 U.S.C. § 1821.
If
Plaintiff wishes to obtain the attendance of one or more
unincarcerated witnesses who refuse to testify voluntarily,
Plaintiff must first notify the Court in writing of the name
and location of each unincarcerated witness. The Court will
calculate the travel expense for each unincarcerated witness
and notify Plaintiff of the amount(s). Plaintiff must then,
for each witness, submit a money order made payable to the
witness for the full amount of the witness’s travel
expenses plus the daily witness fee of $40.00. The
subpoena will not be served upon the unincarcerated witness
by the United States Marshal unless the money order is
tendered to the Court. Because no statute authorizes the
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