Opinion
CASE NO. 1:12-cv-0105-AWI-MJS (PC)
07-27-2015
LANARD KITCHENS, Plaintiff, v. TORDSEN, et al., Defendants.
ORDER REGARDING PLAINTIFF'S MOTION TO SUBPOENA UNINCARCERATED WITNESSES
(ECF No. 90)
AUGUST 31, 2015 DEADLINE FOR SUBMISSION OF STATUTORY FEES
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 10.) This matter proceeds against Defendant Tordsen on Plaintiff's First Amendment retaliation claim, and against Defendants Tordsen, Coker, Leach and Day on Plaintiff's Fourteenth Amendment claim for subjecting Plaintiff to conditions of confinement that amounted to punishment. (ECF No. 28.) Trial is set for October 27, 2015. (ECF No. 85.)
I. REQUEST TO SUBPOENA UNINCARCERATED WITNESSES
Plaintiff seeks to subpoena the following staff of California Forensic Medical Group (CFMG) at the Kings County Jail to testify at trial on October 27, 2015: Minetta Costa, Medical Program Manager; Nurses Maryanne Tordsen, Shannon Irish, Frank and Ononaba; Psychiatric Nurse Linda V.; and Doctors Ewing and Wilson. (ECF No. 90.) Plaintiff asserts that he will call each witness for the purpose of authenticating medical records which he or she has authored or signed.
The Court's May 29, 2015 scheduling order advised Plaintiff of the procedures for subpoenaing unincarcerated witnesses for trial. (ECF No. 85.) Plaintiff was advised to notify the Court in writing of the names and location of such witnesses by July 27, 2015. He has done so.
Accordingly, the Court will advise Plaintiff of the travel expenses for each witness so that Plaintiff may meet his obligation of submitting, not later than August 31, 2015, a money order to cover the travel expenses for each witness. Without the money orders, no subpoena will issue and no witness will be served by the United States Marshal.
Plaintiff lists the location of these witnesses as California Forensic Medical Group, Kings County Jail, 1570 Kings County Drive, Hanford, CA 93230. The Court takes judicial notice that this is the physical location of the Kings County Jail. It is not clear that this address is appropriate for service or mileage costs for employees of CFMG, which contracts with the jail.
If the witnesses are to travel from the Kings County Jail to the United States District Court in Fresno, California, the round trip mileage is 68 miles. The mileage rate is 57.5 cents per mile. Accordingly, the total mileage fee for each of these witnesses is $39.10. Each also is entitled to a $40.00 daily witness fee. Therefore, Plaintiff must submit a money order in the amount of $79.10 payable to each of these individuals he wants subpoenaed to trial.
If the witnesses are in fact required to travel from some other, more distant, location, the travel expense calculated here will be inadequate and not in compliance with this Court's Orders. --------
The deadline for submitting money orders to subpoena witnesses is August 31, 2015. The Court will take and keep Plaintiff's motion for the attendance of these witnesses under submission pending receipt of the money orders.
Plaintiff's efforts to subpoena these witnesses may be misguided. Often, a facility's records custodian may authenticate all medical records from that facility. More often, the parties will stipulate to the authenticity of medical records. Either alternative would obviate the need to subpoena seven individuals and pay their witness fees.
II. CONCLUSION AND ORDER
Plaintiff's motion for the attendance of unincarcerated witnesses (ECF No. 90) is taken under submission pending receipt of money orders covering the statutorily mandated witness fees. IT IS SO ORDERED.
Dated: July 27, 2015
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE