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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CHARLES T. DAVIS,

Plaintiff, No. 2:04-cv-0878 GEB DAD P

vs.

C/O KISSINGER, et al.,

Defendants. FURTHER SCHEDULING ORDER

 /

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

rights action pursuant to 42 U.S.C. § 1983. By order filed September 30, 2009 (Doc. No. 193),

the district court granted in part and denied in part defendants’ motion for summary judgment. 

On January 11, 2012, the United States Court of Appeals for the Ninth Circuit affirmed in part

and reversed in part that decision. (Doc. No. 205.) Pursuant to court order, this matter

proceeded to settlement conference on October 23, 2012 before the Honorable Gregory G.

Hollows. The case did not settle. (See Minutes of Oct. 23, 2012 (Doc. No. 221).) Accordingly, 

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 On October 3, 2012, plaintiff filed a motion for imposition of sanctions in which he 1

alleged he had been denied access to his legal material to prepare for the settlement conference. 

(Doc. 219.) On October 30, 2012, plaintiff filed a motion for imposition of sanctions on the

ground that defendants allegedly failed to comply with the court’s order requiring that a person

with full authority to settle the case attend the settlement conference. Defendants oppose the

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the court will now, by this order, set a schedule for the remainder of this litigation.

 In due course, the parties will be required to file pretrial statements in accordance

with the schedule set forth below. In addition to the matters already required to be addressed in

the pretrial statement in accordance with Local Rule 281, plaintiff will be required to make a

particularized showing in his pretrial statement in order to obtain the attendance of witnesses. 

Plaintiff is advised that failure to comply with the procedures set forth below may result in the

preclusion of any and all witnesses named in his pretrial statement. 

At the trial of this case, the 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 the 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 the 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.

I. 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 this court orders the warden or other custodian to permit the witness

to be transported to court. This court will not issue such an order unless it is satisfied that:

1. The prospective witness is willing to attend; 

and

2. The prospective witness has actual knowledge of relevant facts.

With the pretrial statement, a party intending to introduce the testimony of

incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file a

motion and represent that they did have a person with full authority to settle the case in

attendance. Plaintiff’s first motion is now moot and his second is without merit. Both will

therefore be denied.

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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 and address of each such witness; 

and

2. Be accompanied by affidavits showing that each witness is willing to

testify and that each witness has actual knowledge of relevant facts.

The willingness of the prospective witness can be shown in one of two ways:

1. The party himself can swear by affidavit that the prospective witness

has informed the party that he or she is willing to testify voluntarily

without being subpoenaed. The party must state in the affidavit when and

where the prospective witness informed the party of this willingness; or

2. The party can serve and file an affidavit sworn to by the prospective

witness, in which the witness states that he or she is willing to testify

without being subpoenaed.

The prospective witness’ actual knowledge of relevant facts can be shown in one

of two ways:

1. The party himself can swear by affidavit that the prospective witness

has actual knowledge. However, this can be done only if the party has

actual firsthand knowledge that the prospective witness was an eyewitness

or an ear-witness to the relevant facts. For example, if an incident

occurred in the plaintiff’s cell and, at the time, the plaintiff saw that a

cellmate was present and observed the incident, the plaintiff may swear to

the cellmate’s ability to testify. 

Or

/////

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2. The party can serve and file an affidavit sworn to 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 affidavit is

made by the plaintiff or by the prospective witness, it must be specific

about what the incident was, 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’ custodian to bring the witness to court.

II. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse

to Testify Voluntarily

If a party seeks to obtain the attendance of incarcerated witnesses who refuse to

testify voluntarily, the party should submit with his pretrial statement a motion for the attendance

of such witnesses. Such motion should be in the form described above. In addition, the party

must indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily.

III. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who

Agree to Testify Voluntarily

It is the responsibility of the party who has secured an unincarcerated witness’

voluntary attendance to notify the witness of the time and date of trial. No action need be sought

or obtained from the court.

IV. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who

Refuse to Testify Voluntarily

If a prospective witness is not incarcerated, and he or she refuses to testify

voluntarily, not earlier than four weeks and not later than two weeks before trial, the party must

prepare and submit to the United States Marshal a subpoena for service by the Marshal upon the

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witness. Also, the party seeking the witness’ presence must tender an appropriate sum of money

to the witness through the United States Marshal. In the case of an unincarcerated witness, the

appropriate sum of money is the daily witness fee of $40.00 plus the witness’ travel expenses.

A subpoena will not be served by the United States Marshal upon an

unincarcerated witness unless the subpoena is accompanied by a money order made payable to

the witness for the full amount of the witness’ travel expenses plus the daily witness fee of

$40.00. As noted earlier, 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.

Good cause appearing, pursuant to Fed. R. Civ. P. 16(b), THIS COURT ORDERS

AS FOLLOWS:

1. Plaintiff’s October 3, 2012 motion for sanctions (Doc. 219) is denied.

2. Plaintiff’s October 30, 2012 motion for sanctions (Doc. 225) is denied.

3. Plaintiff shall file and serve his pretrial statement and any motions necessary to

obtain the attendance of witnesses at trial on or before April 5, 2013. Defendants shall file their

pretrial statement on or before April 19, 2013. The parties are advised that failure to file a

pretrial statement may result in the imposition of sanctions, including dismissal of this action. 

4. Pretrial conference (as described in Local Rule 282) is set in this case for 

April 26, 2013, before the magistrate judge. The pretrial conference shall be conducted on the

file only, without appearance by either party.

5. This matter is set for jury trial before the Honorable Garland E. Burrell on July

23, 2013 at 9:00 a.m. in Courtroom 10.

IT IS SO ORDERED.

DATED: December 19, 2012.

DAD:12:mp

davi04cv0878.41sjd

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