(PC) Garraway v. Ciufo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MITCHELL GARRAWAY, 1:17-cv-00533-DAD-GSA-PC 12 Plaintiff, ORDER GRANTING PLAINTIFF’S REQUEST FOR INSTRUCTIONS TO 13 vs. EXPEDITE PAYMENT OF TRAVEL EXPENSES FOR UNINCARCERATED 14 JACQUILINE CIUFO, et al., WITNESSES (ECF No. 148.) 15 Defendants. 16 17 18 19 I. BACKGROUND 20 Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights 21 action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now 22 proceeds with Plaintiff’s original Complaint filed on April 17, 2017, against defendants 23 Jacqueline Ciufo (Unit Manager), K. Miller (Corrections Officer), and Lieutenant J. Zaragoza 24 (collectively, “Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment. 25 (ECF No. 1.) 26 This case is scheduled for a Pretrial Conference (aka Trial Confirmation Hearing) on 27 October 17, 2022 at 1:30 p.m. before the Honorable Ana de Alba in Courtroom 1. To date, trial 28 has not been scheduled for this case. 1 On May 28, 2022, the court issued a Second Scheduling Order, which contained 2 instructions for Plaintiff to request witnesses to appear at trial. (ECF No. 132.) In the Order, 3 Plaintiff was advised as follows. 4 If a prospective witness is not incarcerated, and he or she refuses to testify 5 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In 6 addition, the party seeking the witness’s presence must tender an appropriate sum 7 of money for the witness. Id. In the case of an unincarcerated witness, the 8 appropriate sum of money is the daily witness fee of $40.00 plus the witness’s 9 travel expenses. 28 U.S.C. § 1821. 10 If Plaintiff wishes to obtain the attendance of one or more unincarcerated 11 witnesses who refuse to testify voluntarily, Plaintiff must first notify the court in 12 writing of the name and location of each unincarcerated witness. The court will 13 calculate the travel expense for each unincarcerated witness and notify Plaintiff 14 of the amount(s). Plaintiff must then, for each witness, submit a money order 15 made payable to the witness for the full amount of the witness’s travel expenses 16 plus the daily witness fee of $40.00. The subpoena will not be served upon the 17 unincarcerated witness by the United States Marshal unless the money order is 18 tendered to the court. Because no statute authorizes the use of public funds for 19 these expenses in civil cases, the tendering of witness fees and travel expenses is 20 required even if the party was granted leave to proceed in forma pauperis. 21 (ECF No. 132 at 5-6 ¶4.) 22 On September 1, 2022, Plaintiff filed motions for the attendance of unincarcerated and 23 incarcerated witnesses at trial. (ECF Nos. 140, 141.) Plaintiff requested the attendance of two 24 unincarcerated witnesses, La Ronica Gardea (formerly employed at U.S. Penitentiary-Atwater) 25 and Corrections Officer Ciprian (currently employed at U.S. Penitentiary-Atwater). (ECF No. 26 140.) Plaintiff asserted that he is unable to provide these witnesses’ current addresses because 27 he is unable to ascertain the current place of employment of La Ronica Gardea, and he cannot 28 obtain an address for C/O Ciprian because of a lockdown at the prison. (Id.) 1 On October 7, 2022, Plaintiff filed a request for instructions to expedite payment of travel 2 expenses for his unincarcerated witnesses. (ECF No. 148.) 3 II. PLAINTIFF’S REQUEST 4 Plaintiff again asserts that he is unable to obtain addresses for his two prospective 5 unincarcerated witnesses because federal inmates are not permitted to locate, obtain, or possess 6 addresses for Federal Bureau of Prisons staff. Plaintiff requests that the court obtain addresses 7 and calculate travel expenses for his two witnesses so that Plaintiff can submit the required 8 money orders. 9 Plaintiff must obtain and provide his witnesses’ addresses to the court himself. The court 10 is not available to conduct research for Plaintiff.1 However, if Plaintiff has an address for U.S. 11 Penitentiary-Atwater, and his prospective witness C/O Ciprian is employed there, then Plaintiff 12 already has C/O Ciprian employer’s address. 13 Importantly, the deadline to initiate the process to obtain attendance of unincarcerated 14 witnesses who refuse to testify voluntarily expired on October 5, 2022. (ECF No. 138 at 5.) 15 Plaintiff is advised to immediately file a motion for extension of the deadline for the court’s 16 consideration, showing good cause why the deadline to provide addresses and money orders 17 should be extended. If the deadline is not extended, then it is too late for Plaintiff to complete 18 the process to obtain attendance of unincarcerated witnesses who refuse to testify voluntarily. 19 III. CONCLUSION 20 Accordingly, the court HEREBY ORDERS as follows: 21 1. This matter is set for telephonic trial confirmation hearing before the Honorable 22 Ana de Alba on October 17, 2022 at 1:30 p.m. in Courtroom 1; and 23 24 1It is not the court’s duty to act as Plaintiff’s counsel or paralegal in these matters. 25 Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162, 120 S.Ct. 684, 145 26 L.Ed.2d 597 (2000) (“[T]he trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal ‘chores’ for the defendant that counsel would normally carry out”); 27 Pliler v. Ford, 542 U.S. 225, 231, 124 S. Ct. 2441, 2446, 159 L. Ed. 2d 338 (2004) (“Requiring district courts to advise a pro se litigant in such a manner would undermine district judges’ role as impartial 28 decisionmakers.”). 1 2. Plaintiff’s request for instructions to expedite payment of travel expenses for 2 unincarcerated witnesses who refuse to testify voluntarily is granted by this order. 3 IT IS SO ORDERED. 4 5 Dated: October 10, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28