(PC) Petillo v. Jasso ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, No. 1:21-cv-01401-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO COMPEL, DENYING MOTION FOR 13 v. WITNESS, AND OVERRULING OBJECTIONS 14 REYNALDO JASSO, et al., (ECF Nos. 88, 90) 15 Defendants. 16 17 Plaintiff Isaiah J. Petillo is appearing pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 This case is currently set for a status conference on October 3, 2023, at 10:00 a.m., to 20 discuss the setting of a new jury trial date. (ECF No. 86.) 21 On September 22, 2023, Plaintiff filed a motion to compel, motion to call witness at trial, 22 and objections to the “non-hearing” ruling on the motions in limine. (ECF Nos. 88, 89, 90.) 23 I. 24 DISCUSSION 25 A. Motion to Compel/Objections to Non-Hearing Ruling on Motions in Limine 26 1. Motion to Compel 27 In the motion to compel, Plaintiff contends that he never received a copy of Defendants’ 28 motions in limine, filed on August 9, 2023. Plaintiff also contends that he never received a copy 1 of Defendants’ opposition to his motions in limine, filed on August 22, 2023. Plaintiff claims 2 that he was to be given any materials the Defendants intend to present by way of their motions in 3 limine. (ECF No. 88.) Plaintiff references that Defendants intent to offer several Rules 4 Violation Reports. 5 Plaintiff is advised that Defendants were not required to provide him with any materials 6 they intended to present by way of their motions in limine, and Defendant did not present any 7 materials along with their motions in limine. (ECF No. 71.) Accordingly, Plaintiff’s motion to 8 compel Defendants to provide materials referenced in their motions in limine is denied. 9 2. Objections to Non-Hearing on Motions in Limine 10 By way of separate filing, Plaintiff objects to the Court’s “non-hearing” on the motions in 11 limine. (ECF No. 90.) Plaintiff submits that he was supposed to attend the motions in limine 12 hearing on September 6, 2023. However, Plaintiff argues the motions in limine were postponed 13 to September 11, 2023, and although a writ of habeas corpus ad testificandum was issued for 14 Plaintiff’s appearance on September 11, 2023, he was not called to appear for the hearing. (ECF 15 No. 90.) Plaintiff’s objections are overruled. 16 On August 29, 2023, the Court vacated the September 6, 2023, motions in limine hearing 17 and issued a ruling on the parties’ motions in limine. (ECF No. 80.) Plaintiff submits that the 18 Court’s August 29, 2023 order only vacated the September 6, 2023, motions in limine hearing 19 and the motions in limine were to be “revised” on September 11, 2023. (ECF No. 90.) 20 Plaintiff is incorrect. On August 29, 2023, the Court issued a final ruling on the parties’ 21 motions in limine and vacated the motions in limine hearing set for September 6, 2023. (ECF No. 22 80.) On September 5, 2023, the Court set a status hearing on September 11, 2023, to address the 23 October 3, 2023, jury trial date, given the fact that Plaintiff was “out to court” and in the custody 24 of the Los Angeles County Sheriff’s Department. (ECF Nos. 78, 79, 81, 82.) On this same date, 25 the Court issued a writ of habeas corpus ad testificandum for Plaintiff’s appearance at the 26 September 11, 2023, status hearing. (ECF. 83.) As stated in the Court’s September 12, 2023, 27 order, the Court held the September 11, 2023 hearing, but Plaintiff did not appear, even though 28 Defendants represented to the Court that the writ of habeas corpus ad testificandum was served on 1 the Los Angeles County Jail on September 5 and September 7, 2023. At the September 11, 2023, 2 the Court did not “revise” the motions in limine order or even discuss such filings and order. The 3 sole issue discussed at the September 11, 2023, hearing was whether the October 3, 2023 should 4 be vacated and potential dates to reschedule the trial. Accordingly, Plaintiff’s objections are 5 overruled. 6 B. Motion to Call Witness at Trial 7 Plaintiff seeks to subpoena inmate Keawon Solomon, Inmate No. 6657384, as a witness 8 at the jury trial. Plaintiff submits inmate Solomon has agreed to testify voluntarily. Plaintiff’s 9 motion must be denied. 10 As an initial matter, Plaintiff’s motion is untimely. On June 1, 2023, pursuant to the 11 Court’s trial scheduling order, Plaintiff filed a motion for attendance of incarcerated witnesses at 12 trial. (ECF No. 63.) On July 6, 2023, the Court denied Plaintiff’s motion, without prejudice, to 13 re-filing on or July 27, 2023. (ECF No. 64.) Plaintiff contends that he did not receive the Court’s 14 July 6, 2023, order until a month or so later, i.e. August 6, 2023. However, Plaintiff did not re- 15 file the instant motion until September 14, 2023-with application of the mailbox rule.1 16 Accordingly, Plaintiff’s motion for the attendance of incarcerated witness Solomon is untimely, 17 particularly given that the Court issued the initial trial scheduling order on May 8, 2023. See 18 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992) (“A scheduling order is 19 not a frivolous piece of paper, idly entered ....”) (internal quotation marks and citation omitted). 20 Furthermore, although Plaintiff submits that inmate Solomon has agreed to testify 21 voluntarily, an inmate “cannot come to court unless the Court orders the warden or other custodial 22 to permit the witness to be transported to court.” (ECF No. 59 at 6:4-6.) Plaintiff was advised that 23 he must file a motion for attendance of incarcerated witnesses, stating the name, address, and prison 24 identification number of each such witness, accompanied by declarations by Plaintiff or the 25 witnesses, showing that each witness has actual knowledge of relevant facts. (ECF No. 59 at 7.) 26 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the Court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th 27 Cir. 2010); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 28 1 | Plaintiff was also informed that the declaration must show that the prospective witness was an 2 | eyewitness or ear-witness to relevant facts, and must be specific about the incident at issue in this 3 | case, including when and where it occurred, who was present, and how the prospective witness 4 | happened to be in a position to see or hear what occurred at the time it occurred. (Id. at 7-8) 5 While Plaintiff submits the attendance of inmate Solomon will be voluntarily, he does not 6 | provide a declaration or sufficient factual information to determine whether this inmate was 7 | actually an eye and ear-witness to the incident alleged to have occurred on July 18, 2018. Simply 8 || stating that an individual was an eye and ear-witness is insufficient. As with Plaintiffs prior 9 | motion, the current motion is not specific about any incident witnessed by inmate Solomon, when 10 | and where it occurred, who was present, and how Solomon happened to be in a position to see or 11 || to hear what occurred at the time it occurred. 12 Accordingly, Plaintiff's motion for the attendance of inmate witness Solomon must be 13 || denied. 14 II. 15 CONCLUSION AND ORDER 16 Based on the foregoing, it is HEREBY ORDERED that: 17 1. Plaintiff's motion to compel, filed September 22, 2023 (ECF No. 88) is denied; 18 2. Plaintiff's motion to call a witness to testify at trial (ECF No. 89) is denied; and 19 3. Plaintiff's objections to the written decision on the motions in limine (ECF No. 90) 20 are overruled. 21 IT IS SO ORDERED. DAM Le 23 | Dated: _ September 26, 2023 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28