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Stewart v. Jovanovich

United States District Court, D. Montana, Helena Division

February 22, 2019

LAURENCE STEWART, Plaintiff,
v.
SAM JOVANOVICH, Defendant.

          ORDER

          DANA L. CHRISTENSEN, CHIEF DISTRICT JUDGE UNITED STATES DISTRICT COURT.

         Order Pending before the Court is Plaintiff Laurence Stewart's Motion in Limine (Doc. 119), Motion for Clarification (Doc. 121), Motion to Serve Subpoenas without Full Names and Submit Witness Fees After Service/Full Names is Discovered (Doc. 122), Subpoena Requests (Doc. 123), Motion to Direct Responsibility for Plaintiffs Attire at Trial (Doc. 126), and Supplemental Subpoena Request (Doc. 127).

         A. Motion in Limine (Doc. 119)

         Mr. Stewart seeks to exclude from trial the following evidence: (1) Mr. Stewart's criminal convictions in both Montana and Virginia (Doc. 120 at 1);

         (2) "[A]ny charges or accusations of crimes, that did or do exist" (Doc. 120 at 2);

         (3) Mr. Stewart's institutional discipline record, "with the exception of anything pertaining to STG activity or passing contraband" (Doc. 120 at 2); (4) Mr. Stewart's witnesses' criminal convictions (Doc. 120 at 3); (5) Mr. Stewart's witnesses' institutional discipline records, except for where Defendant Jovanovich or Montana State Prison (MSP) Staff Sergeant Ronald McDonald "were involved in the write up[, ] the write up was STG related [, or] the write up, according to the witness, was retalitory [sic] in nature or greatly exagerated [sic]" (Doc. 120 at 3); and (6) Accusations of misconduct regarding former MSP Warden Michael Fletcher and evidence related to his departure from MSP (Doc. 120 at 3).

         Defendant Jovanovich does not object to Mr. Stewart's motion to exclude any evidence of his criminal history and the criminal history of his witnesses at trial. The motion will therefore be granted as to the criminal history of Mr. Stewart and his witnesses.

         The Court will reserve ruling on the other issues raised in Mr. Stewart's motion until such time as the parties seek to introduce any such evidence at trial.

         B. Motions Regarding Trial Subpoenas (Docs. 121-123, 127)

         Mr. Stewart has four pending filings regarding subpoenas. First, he filed a motion for clarification (Doc. 121). As the Court has dealt with all pending issues in this Order, the motion will be denied as moot.

         Next, Mr. Stewart filed a motion to serve subpoenas without full names and to submit his witness fees after service and full names are discovered. (Doc. 122.)Mr. Stewart indicates he has incomplete information regarding several of his listed witnesses. 28 U.S.C. § 1915 provides that, "[t]he officers of the court shall issue and serve all process." 28 U.S.C. § 1915(d). Mr. Stewart is responsible, however, to provide "the necessary information to help effectuate service." Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). As set forth below, to the extent the location of these witnesses can be determined, the Court will issue a subpoena for these witnesses.

         1. Non-Prisoner Subpoenas

         Mr. Stewart's seeks subpoenas for the following non-prisoner witnesses: Sam Jovanovich, Ronald McDonald, Cheryl Bolton, Myron Beeson, Michael Fletcher, and Chris Connell. Defendant Jovanovich has listed Sam Jovanovich, Ronald McDonald, and Chris Connell on his will-call witness list. Defendant will be required to present these witnesses at trial and the Court will not issue subpoenas for these individuals.

         Cheryl Bolton is a current employee of the Montana Department of Corrections who is listed on Defendant's may call witness list. The request for a subpoena for Ms. Bolton will be granted but before the Court will issue that subpoena, Mr. Stewart must provide the appropriate witness fee for Ms. Bolton which includes $40.00 plus mileage for the distance between her home or work address and the courthouse at a rate of $0.58 per mile. See 28 U.S.C. § 1821(b), (c)(2), (f); Tedder v. Odel,890 F.2d 210 (9th Cir. 1989). The Clerk of Court will be directed to provide Mr. Stewart with a blank subpoena form. The Court will direct service of the subpoena on Ms. Bolton once it receives the completed subpoena form with a witness fee in the amount of $103.80 ($40.00 witness fee plus mileage ($0.58 x 110 miles). The United States Marshals require significant lead time for service of subpoenas, especially in civil matters. As such, if the Court does not receive the $103.80 mileage and witness fee for Ms. Bolton on or before Friday, March 15, 2019, it will not request the United States Marshals to serve that ...


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