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Bussiere v. Tiggs-Brown

United States District Court, E.D. California

July 14, 2017

ARTHUR T. BUSSIERE, Plaintiff,
v.
TIGGS-BROWN, Defendant.

          SECOND SCHEDULING ORDER ORDER REQUIRING PARTIES TO NOTIFY COURT WHETHER THEY CONSENT TO MAGISTRATE JUDGE JURISDICTION WITHIN THIRTY DAYS ORDER DIRECTING CLERK'S OFFICE TO SEND LOCAL RULE 281 TO PLAINTIFF

          Sheila K. Oberto. UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Arthur T. Bussiere, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's First Amended Complaint (Doc. 12), filed on June 2, 2014, against Defendant Tiggs-Brown for deliberate indifference to Plaintiff's serous medical needs in violation of the Eighth Amendment. The dispositive motion was ruled on (Doc. 94) and the settlement conference was unsuccessful (Doc. 107). Accordingly, pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the Court now sets a further schedule for this litigation.

         I. Pretrial Statements

         The parties are required to file pretrial statements pursuant to Local Rule 281 and must comply with the schedule set forth herein. Failure to comply with the provisions of this Order or the Local Rules may result in the imposition of sanctions up to and including dismissal of the action, or entry of default.

         II. Witnesses & Evidence

         At trial, 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 desires to call witnesses to testify, he must follow certain procedures to ensure that the witnesses will be at the trial and available to testify. Plaintiff is required to make a particularized showing in accordance with the procedures and requirements outlined in detail below. Plaintiff is advised that failure to comply with these procedures may result in the preclusion of any and all witnesses named in his pretrial statement.[1]

         A. Procedures for Obtaining Attendance of Incarcerated Witnesses

         An incarcerated witness cannot come to court to give testimony 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. Motions for the attendance of incarcerated witnesses who agree to testify voluntarily, as well as for those who do not agree to testify voluntarily, must be served and filed concurrent with the pretrial statement. Any such motion should be entitled “Motion for Attendance of Incarcerated Witnesses.”

         The Court will review and rule on the motion for attendance of incarcerated witnesses, specifying which prospective witnesses will be brought to court. The Court will then issue the necessary order 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 22, 2017. Oppositions, if any, must be filed on or before November 27, 2017.

         1. Motions For Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily

         A party intending to introduce the testimony of incarcerated witnesses who agree 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 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 has actual, first-hand knowledge of relevant facts.

         The willingness of the prospective witness can be shown in one of two ways: (1) Plaintiff can submit a declaration, under penalty of perjury, that the prospective witness has informed him/her of their willingness to testify without being subpoenaed which shows when and where the prospective witness so informed Plaintiff; or (2) Plaintiff can serve and file a declaration, signed under penalty of perjury by the prospective witness, in which the witness states a willingness to testify without being subpoenaed.

         The prospective witness's actual knowledge of relevant facts can be shown in one of two ways: (1) if Plaintiff 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), Plaintiff can swear by declaration under penalty of perjury that the prospective witness has actual knowledge; or (2) Plaintiff may 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 Plaintiff ...


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