Opinion
2:17-cv-02436-DJC-CKD
08-29-2023
KEITH CANDLER, Plaintiff, v. J. LEBECK, et al., Defendants.
PRETRIAL ORDER
HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE
Plaintiff is a state inmate proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. This matter is set for trial on October 19, 2023. Following the Final Pretrial Conference and issuance of the Final Pretrial Order, Plaintiff has filed three documents with this court making various requests and raising objections. (See ECF Nos. 87, 88, 90.)
The first document filed by Plaintiff is entitled “Plaintiff presenting 13 subpoena for trial witnesses”. (ECF No. 87.) In it, Plaintiff requests that the Court “order the marshals to issue subpoena to said unincarcerated witnesses to Plaintiff can question them during trial.” (Id. at 1.) However, such an order is not necessary for Plaintiff to be able to utilize the United States Marshals Service to serve subpoenas. As Plaintiff was informed in the Discovery and Scheduling Order issued in this case, “If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, not earlier than 1 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 witness. (Blank subpoena forms may be obtained from the Clerk of the Court).” (ECF No. 19 at 4.) The Court will direct the Clerk of the Court to provide Plaintiff with a copy of the blank subpoena form. The Court reminds the Plaintiff that he does not need to subpoena any witnesses who agree to testify voluntarily. (See id. at 3-4.) Plaintiff is also permitted to call any witnesses designated by the Defendant. (See ECF No. 86 at 2.)
It appears Plaintiff may also be requesting that the Court waive the fees associated with using the United States Marshals to serve subpoenas based on Plaintiff's in forma pauperis status. (ECF No. 87 at 1.) The Ninth Circuit has expressly rejected that courts are authorized to waive fees and expenses for witnesses based on in forma pauperis status under 42 U.S.C. § 1915. Tedder v. Odel, 890 F.2d 210, 21112 (9th Cir. 1989) (“Although the plain language of section 1915 provides for service of process for an indigent's witnesses, it does not waive payment of fees or expenses for those witnesses. The Supreme Court has declared that the expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress.” (internal quotation marks and citations omitted)). Thus, to the extent Plaintiff is making such a request, that request is denied as the Court does not have the authority to authorize the waiver of the fees for service by the United States Marshal Service.
Plaintiff's second document is entitled “Plaintiff objection to defendants (sic) amended pretrial statement” and states three objections to this pretrial statement. (ECF No. 88 at 1 -2.) The first is that the Court previously denied Plaintiff's request to amend his pretrial statement and it is prejudicial to permit Defendants to amend when Plaintiff's request was denied. (Id. at 2.) This seems to be a reference to the Court's denial of Plaintiff's request to amend the pretrial statement to add a news article to his exhibit list. (See ECF No. 78.) The Court denied that request at the Final Pretrial Hearing on the basis that the proposed exhibit would not be admissible at trial.
However, the Court expressly informed the Plaintiff that it would permit him the opportunity to amend his pretrial statement if he believed he had another reason to do so. The denial of Plaintiff's previous motion to amend was based solely on the inadmissibility of the proposed evidence and was made without prejudice to a new request. Plaintiff may still request to file an amended pretrial statement if he wishes to do so and the Court will give that motion full consideration.
The other two objections contained in Plaintiff's second document concern Defendants' argument in their pretrial statement that Plaintiff's proposed witnesses lack sufficient personal knowledge and a general objection to Plaintiff's prior felony convictions being raised at trial. (ECF No. 88 at 2.) Both of these objections are more properly suited to motions in limine; Defendants' arguments in their pretrial statements are not a motion in their own right and do not necessitate objections. To the extent that Plaintiff wishes to raise issues regarding the permissibility of certain witnesses or Plaintiff's prior convictions at trial, Plaintiff is invited to file these as motions in limine by the deadline previously set by the Court.
Finally, Plaintiff has filed a request for “the verdict forms” from the Clerk of the Court. (ECF No. 90 at 1.) At the Final Pretrial Conference and in its Final Pretrial Order, the Court directed parties to file proposed jury instructions and verdict forms on or before October 4, 2023. (ECF No. 86 at 4.) Verdict forms are forms that are provided to the jury to be filled out and returned to the Court once they reach a verdict. These forms are created by the parties, not by the Court. As such, the Court does not have a “verdict form” to provide to Plaintiff and this request will be denied. //// //// //// //// //// ////
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's Request for Issuance of Subpoenas of Trial Witnesses (ECF No. 87) is DENIED;
2. Plaintiff's Request for Verdict Forms (ECF No. 90) is DENIED; and
3. The Clerk of the Court is directed to include with this Order a copy of the blank subpoena form used in this district.
IT IS SO ORDERED.