United States District Court, E.D. California
AMENDED SCHEDULING ORDER
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Brian Ellis Porter (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action under 42 U.S.C. § 1983.
action proceeds on Plaintiff's claims against Defendant
Wegman for violation of the Free Exercise Clause of the First
Amendment of the United States Constitution. In particular,
this action proceeds on Plaintiff's claim that Defendant
Wegman violated his right to free exercise of his religion by
switching him from a kosher diet to a vegetarian diet and
denying his requested dietary accommodations during multi-day
to 28 U.S.C. §636(c)(1), all parties have consented to
conduct all further proceedings in this action before a U.S.
Magistrate Judge, including trial and entry of judgment. (ECF
Nos. 5, 150.) On April 13, 2017, the Court entered an order
assigning the action to U.S. Magistrate Judge Barbara A.
McAuliffe for all further purposes and proceedings. (ECF No.
151.) Under Federal Rules of Civil Procedure 16(b), the Court
now sets an amended schedule for this litigation.
parties are required to file pretrial statements in
accordance with the schedule set forth herein. In addition to
the matters already required to be addressed in the pretrial
statement under Local Rule 281, the parties will be required
to submit requests to obtain the attendance of incarcerated
witnesses. The procedures, requirements and deadlines for
such a request are outlined in detail below. The parties are
advised that failure to comply with the procedures set forth
below may result in the preclusion of any and all witnesses.
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. Plaintiff is responsible for producing 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.
Procedures for Obtaining Attendance of Incarcerated
Witnesses Who Agree to Testify Voluntarily
incarcerated witness who agrees voluntarily to attend trial
to give testimony cannot come to court unless the Court
orders the warden or other custodian to permit the witness to
be transported to court. The Court will not issue such an
order unless it is satisfied that the prospective witness has
actual knowledge of relevant facts.
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
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.
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 (e.g., 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.
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.
for the attendance of incarcerated witnesses at trial, if
any, must be filed on or before May 23, 2017. Objections, if
any, must be filed on or before June 6, 2017.
Procedures for Obtaining Attendance of Incarcerated