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Porter v. Wegman

United States District Court, E.D. California

April 14, 2017

BRIAN ELLIS PORTER, Plaintiff,
v.
CHERYLEE WEGMAN, Defendant.

          AMENDED SCHEDULING ORDER

          BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         This 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 Passover observances.

         Pursuant 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.

         The 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.

         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. 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.

         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 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.

         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 (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.

         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 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.

         2. Procedures for Obtaining Attendance of Incarcerated Witnesses ...


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