AMENDED SECOND SCHEDULING ORDER

SHEILA K. OBERTO, 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 a settlement conference was unsuccessful (Doc. 107).

This case was previously scheduled to begin trial on February 27, 2018, before District Judge Anthony Ishii. (Doc. 108.) However, on August 21, 2017, remaining Defendant Tiggs-Brown consented to Magistrate Judge Jurisdiction. (See Doc. 110.) Thus, all parties to this action have consented to have a Magistrate Judge conduct any and all further proceedings in the case, including the trial and entry of a final judgment. Accordingly, pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the Court now sets a further schedule for this litigation before the undersigned.1

I. Pretrial Statements

The parties are required to file pretrial statements pursuant to Local Rule 2812 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 pursuant to 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.3

A. Procedures for Obtaining Attendance of Incarcerated Witnesses

An incarcerated witness cannot testify at trial 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 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 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 eye-witness 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 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.

2. Motions for Attendance of Incarcerated Witnesses Who Refuse to Testify Voluntarily

If Plaintiff desires to obtain the attendance of incarcerated witnesses who refuse to testify voluntarily, Plaintiff should submit a motion in the form described above. Plaintiff must also indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily.

B. Procedures for Obtaining Attendance of Unincarcerated Witnesses

1. Voluntary

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.

2. Involuntary

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 submit the name and location of each unincarcerated witness on or before October 6, 2017. The Court will calculate the travel expense for each unincarcerated witness and notify Plaintiff of the amount(s). Then, for each witness, on or before November 10, 2017 Plaintiff must submit a money order made payable to the witness for the full amount of the witness's travel expenses plus the daily witness fee. The subpoena will not be served upon the unincarcerated witness by the United States Marshal unless and until the money order is tendered to the Court. 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 the party was granted leave to proceed in forma pauperis.

III. Scheduling Order

Accordingly, the Court HEREBY ORDERS as follows:

IT IS SO ORDERED.