(PC) McCoy v. Holguin

• Court: District Court, E.D. California
• Decided: October 4, 2024
• Docket: 1:15-cv-00768
• Status: Unknown

Opinion

1 Order 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAKEITH MCCOY, Case No. 1:15-cv-00768-KES-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SUBMIT WITNESS INFORMATION 13 v. NOVEMBER 4, 2024 DEADLINE 14 A HOLGUIN, et al., 15 Defendants. 16 17 18 Plaintiff LaKeith McCoy (“Plaintiff”) is a former state prisoner proceeding pro se in this 19 civil rights action pursuant to 42 U.S.C. § 1983. The Final Pretrial Conference in this case is 20 scheduled for December 9, 2024. (Doc. No. 234). A jury trial is scheduled to commence on 21 February 25, 2025 at 8:30 a.m. in Courtroom 6 before District Judge Kirk E. Sheriff. (Id.). As 22 set forth in this Order, to secure the presence of witnesses at trial, Plaintiff is required to (1) 23 provide identifying information and addresses for all of his non-incarcerated witnesses; (2) file 24 motions for the appearance of any incarcerated witnesses; and (3) provide witness fees for any 25 nonincarcerated witnesses who will not voluntarily testify at trial.1 26 1 The Court will advise Plaintiff as to the amount of the witness fees for each of his proposed non- 27 incarcerated witnesses once Plaintiff provides the Court with the necessary information specified in this Order. The Court will set a deadline for submission of the witness fees at a later date. 28 1 INCARCERATED WITNESSES 2 Plaintiff identifies two potential incarcerated witnesses for trial. These are (1) Joshua 3 Howard, and (2) Daniel Verduzco. (Doc. No. 220 at 12, 14). As previously advised, for those 4 incarcerated witnesses who are willing to testify voluntarily, Plaintiff must serve and file a written 5 motion for a court order requiring that such witnesses be brought to court at the time of trial. (See 6 Doc. No. 224 at 3-4). The motion must: (1) state the name, address, and prison identification 7 number of each witness2; and (2) be accompanied by declarations showing that each witness is 8 willing to testify and that each witness has actual knowledge of relevant facts. The motion should 9 be entitled “Motion for Attendance of Incarcerated Witnesses.” Plaintiff should refer to the 10 Court’s March 25, 2024 Amended Order Setting Trial Date, Telephonic Trial Confirmation 11 Hearing and Related Deadlines (Doc. No. 224) for further information concerning requirements 12 of the Motion. 13 If Plaintiff wishes to secure the attendance of incarcerated witnesses who refuse to testify 14 voluntarily, he should serve and file a written motion for a court order requiring that such 15 witnesses be brought to court at the time of trial. Such motion should be in the form described 16 above. In addition, Plaintiff must indicate in the motion that the incarcerated witnesses are not 17 willing to testify voluntarily. 18 The Court will review and rule on any motions for attendance of incarcerated witnesses, 19 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 20 issue the writs necessary to cause any approved witnesses’ custodian to bring the witness(es) to 21 court. A motion for the attendance of incarcerated witnesses, if any, must be filed on or before 22 November 4, 2024. Any opposition(s) must be filed on or before November 18, 2024.

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26 2 Based on the Court’s review of CDCR’s public inmate locator (https://ciris.mt.cdcr.ca.gov/search), Inmate Joshua Howard, T47638, is currently incarcerated at Kern Valley State Prison and Inmate Daniel 27 Verduzco, T45537, is currently incarcerated at Richard J. Donovan Correctional Facility in San Diego, CA. 28 1 NON-INCARCERATED WITNESSES 2 In his amended pretrial statement, Plaintiff identifies ten potential non-incarcerated 3 witnesses for trial.3 (Doc. No. 220 at 12-14). These include: (1) William Coleman; (2) Dr. 4 Steven Yaplee; (3) Maybren Johnson; (4) J. Gutierrez; (5) former Defendant Santa Maria; (6) 5 former Defendant Holland; (7) former Defendant Kilmer; (8) former Defendant DeLuna; (9) Abel 6 Garcia; and (10) Lieutenant K. Westergren. (Id.). Plaintiff does not provide addresses for 7 Coleman, Johnson, Yaplee, Holland, or Westergren. (See id.). 8 To permit the Court to calculate estimated travel costs and for the Clerk of Court to issue 9 subpoenas (if so ordered), Plaintiff must provide full names and current addresses for each of the 10 witnesses. Plaintiff must submit the required identification and address information to the Court 11 no later than November 4, 2024. 12 Once the Court has this information it will calculate the travel expenses for each non- 13 incarcerated witness and notify Plaintiff. Plaintiff then, for each witness, must submit to the 14 Court a request for subpoena and money order made payable to the witness for the full amount of 15 the witnesses’ travel expenses plus the daily witness fee of $40.00. Because Plaintiff is not 16 proceeding in forma pauperis, he is not entitled to service of the subpoenas by the United States 17 Marshals Service. See 28 U.S.C. 1915(d); 28 U.S.C. 566(c). The Court will issue any approved 18 subpoenas to Plaintiff so that he may have them served in accordance with Rule 4 of the Federal 19 Rules of Civil Procedure. 20 Plaintiff is advised that based on the information he provided to the Court, several of his 21 non-incarcerated witnesses are located more than 100 miles from the location set for trial. Under 22 Rule 45 of the Federal Rules of Civil Procedure, a witness who resides more than 100 miles from 23 the location set for trial is beyond the court’s subpoena power unless: 24 [the location for trial is] within the state where the person resides, is employed, or regularly transacts business in person, [and] . . . the 25

26 3 The Court is uncertain as to the custody status of proposed witnesses William Coleman and Maybren Johnson. Upon review of CDCR’s inmate locator, the Court was unable to find any records for either 27 Coleman or Johnson and thus presumes they are now out of custody. See https://ciris.mt.cdcr.ca.gov/search (last visited: October 3, 2024). 28 1 person (i) is a party or party’s officer; or (11) is commanded to attend a trial and would not incur substantial expense. 2 Fed. R. Civ. P. 45(c)(1)(B); see also Dooley v. Nevada Gold Mines, LLC, 2022 WL 867265, at *3 ° (D. Nev. Mar. 23, 2022) (noting that “federal courts can compel a witness to testify” if the ‘ conditions of Fed. R. Civ. P. 45(c)(1)(B) are met). ° “When travel over 100 miles could impose substantial expense on the witness, the party that served the subpoena may pay that expense and the court can condition enforcement of the 7 subpoena on such payment.” See Advisory Committee Note to the 2013 Amendments to Rule 45. Thus, the Court will determine whether issuance of subpoenas to any witness beyond the Court’s ° subpoena power is appropriate and may condition its enforcement on Plaintiff's payment of the 10 witness’ expenses, including overnight lodging permitting the witness to attend trial. Accordingly, it is hereby ORDERED: 2 1. No later than November 4, 2024, Plaintiff shall file any Motions for the Attendance of Incarcerated Witnesses in accordance with the instructions in this Order and the 4 Court’s March 25, 2024 Order (Doc. No. 224). 2. Defendants’ opposition(s), if any, must be filed on or before November 18, 2024. 16 3. No later than November 4, 2024, Plaintiff shall submit to the Court the full names and M addresses for potential witnesses Coleman, Johnson, Yaplee, Holland, and Kilmer. 4. If Plaintiff fails to comply with any provision of this Order he may be subject to sanctions at the Court’s discretion. 20 21 39 | Dated: October 4, 2024 laa tarch Lash te HELENA M. BARCH-KUCHTA 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28