Opinion
No. CIV S-04-1304-LKK-CMK-P.
January 9, 2008
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's request for additional time to file his motions to compel the attendance of his incarcerated witnesses at trial (Doc. 59). Plaintiff also expresses concern about his legal property which he states is being held by the staff at Pleasant Valley State Prison following his transfer to that location.
Pursuant to this court's order of December 7, 2007, plaintiff is required to file any motions necessary to obtain the attendance of witnesses who are incarcerated by January 22, 2008. However, due to his transfer to a different prison, he is not currently in possession of his legal documents and is unable to meet that deadline. Plaintiff has requested an additional 90 days in which to file his motions. An extension of 90 days would be too close to the trial date of May 13, 2008 for any such motion to be effective. However, the court will allow plaintiff to make an oral motion for the attendance of his witnesses at the trial confirmation hearing set for February 11, 2008. If plaintiff finds that he is in need of additional time at the hearing, he can make a request to the court at that time. Plaintiff was recently sent another copy of the scheduling order which sets forth the showing plaintiff must make in order to obtain the attendance of any incarcerated witness at his trial. Plaintiff is again referred to that order (Doc. 48) for further assistance.
Plaintiff also states that his legal property is being withheld by prison staff, and that the prison staff is impeding his case by withholding this property. The court notes that plaintiff was recently transferred to Pleasant Valley State Prison. Plaintiff should receive his legal property within due time. However, if plaintiff continues to experience difficulties in obtaining possession of documents needed to facilitate the continuing prosecution of this case, plaintiff is advised to raise the issue with the court at the trial confirmation hearing.
Accordingly, IT IS HEREBY ORDERED that
1. Plaintiff's request for additional time to file a motion for the attendance of incarcerated witnesses at his trial is granted in part;
2. Plaintiff may file his motion or make an oral motion for the attendance of incarcerated witnesses at or before the trial confirmation hearing set for February 11, 2008; and
3. If plaintiff continues to experience difficulties in obtaining possession of his legal documents necessary to further prosecute this case, plaintiff shall raise the issue at the trial confirmation hearing.