Filed: Nov. 26, 2019
Latest Update: Nov. 26, 2019
Summary: ORDER RE: PLAINTIFF'S MOTION FOR ATTENDANCE OF WITNESSES ERICA P. GROSJEAN , Magistrate Judge . Colin 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. On November 25, 2019, Plaintiff filed a motion requesting, among other things, attendance of witnesses at trial. (ECF No. 73). However, Plaintiff's request does not comply with the scheduling order. ( See ECF No. 29, pgs. 8-10). As to in
Summary: ORDER RE: PLAINTIFF'S MOTION FOR ATTENDANCE OF WITNESSES ERICA P. GROSJEAN , Magistrate Judge . Colin 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. On November 25, 2019, Plaintiff filed a motion requesting, among other things, attendance of witnesses at trial. (ECF No. 73). However, Plaintiff's request does not comply with the scheduling order. ( See ECF No. 29, pgs. 8-10). As to inm..
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ORDER RE: PLAINTIFF'S MOTION FOR ATTENDANCE OF WITNESSES
ERICA P. GROSJEAN, Magistrate Judge.
Colin 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.
On November 25, 2019, Plaintiff filed a motion requesting, among other things, attendance of witnesses at trial. (ECF No. 73). However, Plaintiff's request does not comply with the scheduling order. (See ECF No. 29, pgs. 8-10).
As to inmate Bell, Plaintiff failed to include inmate Bell's CDCR number in his motion. Plaintiff also did not indicate whether inmate Bell is willing to testify voluntarily. Accordingly, the Court will give Plaintiff two weeks from the date of service of this order to file a supplement regarding the attendance of inmate Bell. The supplement should include inmate Bell's CDCR number,1 as well as whether he is willing to testify voluntarily.
As to Dr. Chen, Plaintiff does not need to file a motion to secure his attendance. As laid out in the Court's scheduling order,
[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.
If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and location of each unincarcerated witness. The Court will calculate the travel expense for each unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, submit a money order made payable to the witness for the full amount of the witness's travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the unincarcerated witness by the United States Marshals Service unless 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 Plaintiff was granted leave to proceed in forma pauperis.
(ECF No. 27, pgs. 9-10).
If Plaintiff wishes to have the Marshals Service serve Dr. Chen, Plaintiff must submit the money order to the Court no later than January 2, 2019. In order to ensure timely submission of the money order, Plaintiff must notify the Court of Dr. Chen's location, in compliance with the instructions in the scheduling order, no later than December 11, 2019.
Despite the defects identified above, the Court will require Defendant to file a response to Plaintiff's motion for the attendance of witnesses within two weeks from the date of service of this order.
By requiring a response, the Court is not making a decision on the motion at this time. It will decide the issue after a full consideration of the motion, including supplemental information described above, and opposition, if any.
Based on the foregoing, IT IS ORDERED that:
1. Plaintiff has two weeks from the date of service of this order to file a supplement regarding inmate Bell. The supplement should include inmate Bell's CDCR number, as well as whether he is willing to testify voluntarily.
2. If Plaintiff wishes to have the Marshals Service serve Dr. Chen, Plaintiff must submit the money order to the Court no later than January 2, 2019. In order to ensure timely submission of the money order, Plaintiff must notify the Court of Dr. Chen's location, in compliance with the instructions in the scheduling order, no later than December 11, 2019.
3. Defendant has two weeks from the date of service of this order to file a response to Plaintiff's motion for the attendance of witnesses.
IT IS SO ORDERED.
