United States District Court, E.D. California
COLIN M. RANDOLPH, Plaintiff,
R. LOZOVOY, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR ATTENDANCE
OF WITNESSES AND FOR APPOINTMENT OF PRO BONO COUNSEL (ECF
NOS. 73 & 76)
Randolph (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action filed pursuant to 42 U.S.C.
§ 1983. This action is proceeding on Plaintiff's
First Amended Complaint on his claim against defendant
Lozovoy for deliberate indifference to serious medical needs
in violation of the Eighth Amendment. (ECF Nos. 14 & 57).
November 25, 2019, Plaintiff filed a motion for attendance of
witnesses and for appointment of pro bono counsel. (ECF No.
73). On December 9, 2019, Plaintiff filed a supplement. (ECF
No. 76). On December 11, 2019, Defendant filed his opposition
to the motion. (ECF No. 78). Plaintiff's motion is now
before the Court.
MOTION FOR ATTENDANCE OF WITNESSES
Plaintiff's motion, Plaintiff requests the attendance of
two witnesses, Dr. Chen and Inmate Lawrence Bell. For the
reasons that follow, Plaintiff's motion will be denied.
Plaintiff's Request for the Attendance of Dr.
Court informed Plaintiff, “[i]f 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.” (ECF No. 29, pgs.
9-10). “Because no statute authorizes the use of public
funds for these expenses in civil cases, the tendering of
witness fees and travel expenses is required even if
Plaintiff was granted leave to proceed in forma
pauperis.” (Id. at 10).
has stated that he cannot provide the required witness fee
and travel expenses. (ECF No. 76, p. 2). Accordingly, the
Court will not direct the United States Marshals Service to
serve a subpoena on Dr. Chen, and Plaintiff's request for
the attendance of Dr. Chen will be denied. The Court notes
that nothing in this order prevents Plaintiff from securing
the voluntary attendance of Dr. Chen.
Plaintiff's Request for the Attendance of Inmate
February 9, 2018, the Court issued a scheduling order. (ECF
No. 29). In the scheduling order, the Court explained the
procedures for obtaining the attendance of witnesses, and
gave the parties until September 3, 2019, to file motions for
the attendance of incarcerated witnesses. (Id. at
7-10). On September 25, 2019, the Court extended the deadline
to October 17, 2019. (ECF No. 58, p. 2). On October 9, 2019,
the Court extended the deadline to November 11, 2019. (ECF
No. 62, pgs. 2-3). It appears that Plaintiff's motion for
the attendance of inmate Lawrence Bell was mailed to the
Court on November 19, 2019. (ECF No. 73, p. 4).
explains that his motion was not timely filed because he
“did not realize, know or suspect that a deadline
existed beyond the pretrial statement that he met. In
addition, Plaintiff literally in March lost all his legal
property and informed the Court of this. Plaintiff requested
that Court send him a scheduling order. Upon receipt it
didn't state there was a deadline but that of November 4,
2019 at which time Plaintiff's pretrial statement was
is correct that Plaintiff did not adequately explain why his
motion was not timely filed. Plaintiff does not dispute that
he received a copy of the Court's scheduling order, which
described the procedures for obtaining the attendance of
incarcerated witnesses, and set a deadline for the filing of
motions for the attendance of incarcerated witnesses.
Plaintiff also does not dispute that he received the orders
granting extensions of this deadline.
true that Plaintiff informed the Court that he did not have
access to his legal property, and that he requested a copy of
the scheduling order. However, Plaintiff's request for a
copy of the scheduling order was granted (ECF No. 62), and
Plaintiff was served with a copy of the scheduling order. As
described above, not only did the scheduling order provide a
deadline for parties to file motions for the attendance of
incarcerated witnesses, it also described the procedures for
obtaining the attendance of incarcerated witnesses. Moreover,
in granting Plaintiff's request for a copy of the
scheduling order, the Court also extended Plaintiff's
deadline to file a motion for the attendance of incarcerated
witnesses. Despite receiving the procedures for obtaining the
attendance of incarcerated witnesses and an extension of time
to do so, Plaintiff did not timely file his motion.
Plaintiff did not timely file his motion for the attendance
of Lawrence Bell, and as he failed to show excusable neglect
for the late filing (or even good cause for an extension of
time), Plaintiff's ...