(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, AMENDED1 ORDER GRANTING PLAINTIFF’S 13 vs. REQUEST FOR INSTRUCTIONS TO EXPEDITE PAYMENT OF TRAVEL 14 JACQUILINE CIUFO, et al., EXPENSES FOR UNINCARCERATED WITNESSES 15 Defendants. (ECF No. 148.) 16 17 18 19 20 21 22 I. BACKGROUND 23 Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights 24 action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now 25 proceeds with Plaintiff’s original Complaint filed on April 17, 2017, against defendants 26 Jacqueline Ciufo (Unit Manager), K. Miller (Corrections Officer), and Lieutenant J. Zaragoza 27 28 1 The order has been amended only to reflect the correct date for the Pretrial Conference, May 22, 2023. 1 (collectively, “Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment. 2 (ECF No. 1.) 3 This case is scheduled for a Pretrial Conference (aka Trial Confirmation Hearing) on May 4 22, 2023 at 1:30 p.m. before the Honorable Ana de Alba in Courtroom 1. To date, trial has not 5 been scheduled for this case. 6 On May 28, 2022, the court issued a Second Scheduling Order which contained 7 instructions for Plaintiff to request witnesses to appear at trial. (ECF No. 132.) In the Order, 8 Plaintiff was advised as follows. 9 If a prospective witness is not incarcerated, and he or she refuses to testify 10 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In 11 addition, the party seeking the witness’s presence must tender an appropriate sum 12 of money for the witness. Id. In the case of an unincarcerated witness, the 13 appropriate sum of money is the daily witness fee of $40.00 plus the witness’s 14 travel expenses. 28 U.S.C. § 1821. 15 If Plaintiff wishes to obtain the attendance of one or more unincarcerated 16 witnesses who refuse to testify voluntarily, Plaintiff must first notify the court in 17 writing of the name and location of each unincarcerated witness. The court will 18 calculate the travel expense for each unincarcerated witness and notify Plaintiff 19 of the amount(s). Plaintiff must then, for each witness, submit a money order 20 made payable to the witness for the full amount of the witness’s travel expenses 21 plus the daily witness fee of $40.00. The subpoena will not be served upon the 22 unincarcerated witness by the United States Marshal unless the money order is 23 tendered to the court. Because no statute authorizes the use of public funds for 24 these expenses in civil cases, the tendering of witness fees and travel expenses is 25 required even if the party was granted leave to proceed in forma pauperis. 26 (ECF No. 132 at 5-6 ¶4.) 27 On September 1, 2022, Plaintiff filed motions for the attendance of unincarcerated and 28 incarcerated witnesses at trial. (ECF Nos. 140, 141.) Plaintiff requested the attendance of two 1 unincarcerated witnesses, La Ronica Gardea (formerly employed at U.S. Penitentiary-Atwater) 2 and Corrections Officer Ciprian (currently employed at U.S. Penitentiary-Atwater). (ECF No. 3 140.) Plaintiff asserted that he is unable to provide these witnesses’ current addresses because 4 he is unable to ascertain the current place of employment of La Ronica Gardea, and he cannot 5 obtain an address for C/O Ciprian because of a lockdown at the prison. (Id.) 6 On October 7, 2022, Plaintiff filed a request for instructions to expedite payment of travel 7 expenses for his unincarcerated witnesses. (ECF No. 148.) 8 II. PLAINTIFF’S REQUEST 9 Plaintiff again asserts that he is unable to obtain addresses for his two prospective 10 unincarcerated witnesses because federal inmates are not permitted to locate, obtain, or possess 11 addresses for Federal Bureau of Prisons staff. Plaintiff requests that the court obtain addresses 12 and calculate travel expenses for his two witnesses so that Plaintiff can submit the required 13 money orders. 14 Plaintiff must obtain and provide his witnesses’ addresses to the court himself. The court 15 is not available to conduct research for Plaintiff.2 However, if Plaintiff has an address for the 16 U.S. Penitentiary-Atwater, and his prospective witness C/O Ciprian is employed there, then 17 Plaintiff already has C/O Ciprian’s employer’s address. 18 The deadline to initiate the process to obtain attendance of unincarcerated witnesses who 19 refuse to testify voluntarily expired on October 5, 2022. (ECF No. 138 at 5.) Plaintiff is advised 20 to immediately file a motion for extension of the deadline for the court’s consideration, showing 21 good cause why the deadline to provide addresses and money orders should be extended. If the 22 deadline is not extended, it is too late for Plaintiff to complete the process to obtain attendance 23 of unincarcerated witnesses who refuse to testify voluntarily. 24 2It 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 III. CONCLUSION 2 Accordingly, the court HEREBY ORDERS as follows: 3 1. This matter is set for a Pretrial Conference before the Honorable Ana de Alba on 4 May 22, 2023 at 1:30 p.m. in Courtroom 1; and 5 2. Plaintiff’s request for instructions to expedite payment of travel expenses for 6 unincarcerated witnesses who refuse to testify voluntarily is granted by this order. 7 IT IS SO ORDERED. 8 9 Dated: October 11, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28