(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-ADA-GSA (PC) 12 Plaintiff, ORDER GRANTING MOTION FOR UNINCARCERATED WITNESSES, IN 13 vs. PART 14 JACQUILINE CIUFO, et al., (ECF No. 140.) 15 Defendants. ORDER DENYING MOTION FOR APPOINTMENT OF INVESTIGATOR 16 ORDER RE PLAINTIFF’S MOTION 17 FOR EXTENSION OF TIME 18 (ECF No. 153.) 19 DEADLINE TO PROVIDE NAMES AND ADDRESSES OF 20 UNINCARCERATED WITNESSES: April 7, 2023 21 DEADLINE TO SUBMIT MONEY 22 ORDERS FOR UNINCARCERATED WITNESSES: May 8, 2023 23 24 I. BACKGROUND 25 Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights 26 action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now proceeds 27 with Plaintiff’s original Complaint filed on April 17, 2017, against defendants Jacqueline Ciufo 28 (Unit Manager), K. Miller (Corrections Officer), and Lieutenant J. Zaragoza (collectively, 1 “Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment. (ECF No. 2 1.) 3 This case is scheduled for a Pretrial Conference on May 22, 2023 at 1:30 p.m. and Jury 4 Trial on August 1, 2023 at 8:30 a.m., before the Honorable Ana de Alba. 5 On September 1, 2022, Plaintiff filed a motion for the attendance of unincarcerated 6 witnesses who refuse to testify voluntarily. (ECF No. 140.) On October 24, 2022, Plaintiff 7 notified the Court of names and addresses of his prospective unincarcerated witnesses. (ECF No. 8 152.) On October 28, 2022, Plaintiff filed a motion for extension of time to provide addresses 9 and money orders for service of subpoenas. (ECF No. 153.) Plaintiff also requested the 10 appointment of an investigator. (Id.) 11 II. MOTION FOR ATTENDANCE OF UNINCARCERATED WITNESSES 12 Plaintiff requests attendance at trial of three Bureau of Prisons personnel witnesses who 13 refuse to testify: 14 (1) La Ronica Gardea, Special Investigative Service, who was formerly employed 15 at the U.S. Penitentiary-Atwater; Gardea acted in the capacity of Special 16 Investigative Staff at USP-Atwater, charged with conducting interviews; Plaintiff 17 is unable to obtain a current address for this witness; 18 (2) Corrections Officer FNU Ciprian, who is currently employed at the U.S. 19 Penitentiary-Atwater, P.O. Box 019001, Atwater, California; C/O Ciprian made 20 attempts to move Plaintiff away from Plaintiff’s assailant but was rebuffed by 21 Defendants Miller and Zaragoza; and 22 (3) Stacey Vasquez, Expert Witness, U.S. Penitentiary-Atwater, P.O. Box 019001, 23 Atwater, California; Vasquez acted as paramedic who treated Plaintiff. 24 Plaintiff states that these three witnesses may offer testimony crucial to Plaintiff’s case. 25 Discussion 26 On May 28, 2021, the Court issued the Second Scheduling Order that instructed Plaintiff 27 on the procedures for obtaining the attendance of witnesses. (ECF No. 132.) Plaintiff was 28 advised that he must show the prospective witness’s actual knowledge of relevant facts by clearly 1 explaining when and where the witness was and what the witness saw, heard, or otherwise knew 2 about the events at issue in the complaint. In other words, what can each witness testify to in 3 support of Plaintiff’s claims that Defendants failed to protect him from harm? 4 Plaintiff alleges in the Complaint that on March 20, 2016, his cell mate cut Plaintiff’s 5 nose with a razor. Plaintiff informed Defendants Miller, Ciufo, and Zaragoza about the incident 6 and asked to be moved to another cell, but they all refused to assist him. The cell mate had a 7 long history of serious assaults in which his victims required hospitalization, and Defendants 8 Miller, Ciufo, and Zaragoza were aware of these assaults. On April 2, 2016, the same cell mate 9 struck Plaintiff on the left side of his jaw. 10 Plaintiff has not provided sufficient information for witness La Ronica Gardea. Plaintiff 11 must provide Gardea’s current address and inform the Court of the witness’s actual knowledge 12 of relevant facts. The Court shall not grant Plaintiff’s motion to bring Gardea to trial unless 13 Plaintiff provides more information. 14 A party seeking to compel the attendance of a witness for trial must deposit fees for the 15 witness in advance of the Court issuing a witness subpoena. That fee encompasses the $40.00 16 daily witness fee plus the costs of the witness’s travel to and from the courthouse. 28 U.S.C. § 17 1821. The current mileage reimbursement rate is set at $0.625 per mile. 18 http://www.gsa.gov/mileage. 19 It appears that C/O Ciprian and Stacey Vasquez can testify to relevant facts. For these 20 two witnesses, the round-trip distance to travel from the federal Penitentiary in Atwater, 21 California, to the federal courthouse in Fresno, California is 135 miles. At $0.625 cents per 22 mile reimbursement rate, the cost to subpoena these prospective witnesses would be $85.00 plus 23 the $40.00 daily witness fee for a total of $125.00. No statute authorizes the use of public funds 24 to cover these payments and plaintiff’s in forma pauperis status does not obviate his need to pay 25 them. For each witness, Plaintiff must submit a money order made payable to the witness. The 26 subpoenas will not be issued absent payment in full. 27 /// 28 /// 1 II. MOTION FOR EXTENSION OF TIME 2 Plaintiff filed a motion seeking an extension of time to provide names, addresses, and 3 money orders for each prospective unincarcerated witness. Due to the dates for the Pretrial 4 Conference (May 22, 2023 at 1:30 p.m.) and Jury Trial (August 1, 2023 at 8:30 a.m.) in this case, 5 the Court has set a deadline of May 8, 2023 for Plaintiff to submit money orders to the court for 6 unincarcerated witnesses. (ECF No. 146.) Plaintiff must provide names, addresses, and 7 information about each witness’s knowledge of relevant facts on or before April 7, 2023. These 8 deadlines should allow Plaintiff ample time before the Pretrial Conference to provide the required 9 information and money orders. 10 III. MOTION FOR APPOINTMENT OF INVESTIGATOR 11 Plaintiff requests a court-appointed investigator to assist him with finding current 12 addresses for prospective witnesses. Plaintiff states that he believes La Ronica Gardea has retired 13 from the U.S. Penitentiary in Atwater, but he does not know Gardea’s current address. 14 Plaintiff has been granted leave to proceed with this action in forma pauperis pursuant 15 to 28 U.S.C. § 1915. (ECF No. 4.) However, the in forma pauperis statute does not authorize the 16 expenditure of public funds for investigators. Santos v. Baca, No. 211CV01251KJDNJK, 2014 17 WL 12910916, at *2 (D. Nev. Aug. 19, 2014) (citing see 28 U.S.C. § 1915; see also Hadsell v. 18 Internal Revenue Service, 107 F.3d 750, 752 (9th Cir. 1997); Dixon v. Ylst, 990 F.2d 478, 480 19 (9th Cir. 1993); Brown v. Johnson & Johnson, Inc., Case No. 1:17-cv-01285-AWI-EPF, 2018 20 WL 5734531, *2–3 (E.D. Cal. Oct. 31, 2018) (holding that “the Court is without authority to 21 appoint an investigator or researcher to assist Plaintiff.”)). Accordingly, Plaintiff's request to 22 appoint an investigator shall be denied. 23 Plaintiff's instant motion concerns funding, because only litigants who need funding need 24 permission to hire a private investigator. Id. The expenditure of public funds on behalf of an 25 indigent litigant is proper only when authorized by Congress. Id. (citing Tedder v. Odel, 890 26 F.2d 210, 211-12 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct. 27 2086, 2089, 48 L.Ed.2d 666 (1976)). The two potential sources of Congressional authorization 28 are 28 U.S.C. § 1915 and 18 U.S.C. § 3006A. Id. First, “[t]he in forma pauperis statute, 28 1 U.S.C. § 1915, does not authorize the expenditure of funds for a private investigator.” Id. 2 (quoting Covarrubias v. Gower, 2014 WL 342548, *1 (N.D. Cal. Jan. 28, 2014) (citing Tedder, 3 890 F.2d at 212) (pauper statute does not waive the payment of fees or expenses for an indigent’s 4 witnesses). Second, the Criminal Justice Act, 18 U.S.C. § 3006A, does not apply because this is 5 a civil, and not a criminal, case. Id. Thus, no Congressional authorization exists for the 6 appointment of a private investigator. 7 IV. CONCLUSION 8 Based on the foregoing, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s motion for the attendance of unincarcerated witnesses at trial, filed on 10 September 1, 2022, is GRANTED in part, as to witnesses C/O Ciprian and 11 Stacey Vasquez, and DENIED as to witness La Ronica Gardea; 12 2. Plaintiff’s motion for extension of time, filed on October 28, 2022, is resolved; 13 3. Plaintiff is granted until April 7, 2023 in which to provide the Court with names 14 and addresses for prospective unincarcerated witnesses who refuse to testify 15 voluntarily, and information about their knowledge of relevant facts for trial; 16 4 Plaintiff is granted until May 8, 2023 in which to submit money orders made out 17 to each unincarcerated witness for witness fees and transportation costs; 18 5. Plaintiff must submit separate money orders in the amount of $125.00 made out 19 to each of the witnesses, C/O Ciprian and Stacey Vasquez, on or before May 8, 20 2023, for their witness fees and transportation from the U.S. Penitentiary in 21 Atwater, California to the courthouse in Fresno, California; and 22 6. Plaintiff’s motion for appointment of an interpreter, filed on October 28, 2022, is 23 DENIED. 24 IT IS SO ORDERED. 25 26 Dated: November 8, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28