Glass v. Beer, et al

Filing 221

FINAL PRETRIAL ORDER, signed by Judge Oliver W. Wanger on 4/23/2010. Motion in Limine Hearing set for 5/11/2010 at 08:30 AM and Jury Trial set for 5/11/2010 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Verduzco, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I. 18 1. 19 federal civil rights action. 20 because the conduct allegedly occurred in this judicial district. 21 II. 22 1. 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 The parties request a trial by jury. JURY/NON-JURY 28 U.S.C. § 1331. Venue is proper The Court has subject matter jurisdiction over this JURISDICTION AND VENUE v. BEER, et al., Defendants. DONALD GLASS, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:04-cv-5466 OWW SMS FINAL PRETRIAL ORDER Pretrial Conference: April 22, 2010, 12:15 p.m., Courtroom 3 Motion in Limine Date: May 11, 2010, 8:30 a.m. Courtroom 3 Trial Date: May 11, 2010 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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III.

FACTS

Plaintiff Donald Glass (hereinafter "Plaintiff") is, and was at all relevant times, a convicted felon in the custody of the California Department of Corrections and Rehabilitation (hereinafter "CDCR"). At all times

material to the matters at issue in this case, Glass was incarcerated at California State Prison, Corcoran (hereinafter "CSP-Cor"); Defendant Beer was employed by the CDCR, and worked as a Correctional Sergeant at CSP-Cor at times material to the matters at issue; Defendant Keener was employed by the CDCR, and worked as a Correctional Lieutenant at CSP-Cor at times material to the matters at issue; Defendant Sloss was employed by the CDCR, and worked as a Correctional Officer at CSP-Cor at times material to the matters at issue; Defendant Morales was employed by the CDCR, and worked as a Correctional Officer at CSP-Cor at times material to the matters at issue; Defendant Dill was employed by the CDCR, and worked as a Facility Captain at CSP-Cor at times material to the

The facts listed as undisputed are only those facts that, based on the separate pretrial statements submitted in this case, do not appear to be in dispute by any party to this case. Any facts that were only listed as undisputed by Plaintiff or Defendants are delineated in the section entitled "B. Disputed Facts." 2

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matters at issue; Defendant Butts was employed by the CDCR, and worked as a Correctional Officer at CSP-Cor at times material to the matters at issue; Defendant Adkison was employed by the CDCR, and worked as a Property Officer at CSP-Cor at times material to the matters at issue; Defendant Gonzales was employed by the CDCR, and worked as a Correctional Officer at CSP-Cor at times material to the matters at issue; Defendant Castillo was employed by the CDCR, and worked as an Correctional Counselor II at CSP-Cor at times material to the matters at issue; Defendant Streeter was employed by the CDCR, and worked as an Correctional Counselor II at CSP-Cor at times material to the matters at issue; Defendant Marshall was employed by the CDCR, and was the Warden at CSP-Cor at times material to the matters at issue; Defendant Lloren was employed by the CDCR, and worked as an Office Assistant at CSP-Cor at times material to the matters at issue; On October 23, 2001, at California State Prison-Corcoran, Plaintiff was told to prepare for a cell move. Physical force was used to remove Plaintiff from his cell. After Plaintiff was removed from his cell, he was taken 3

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to the Acute Care Hospital. Plaintiff remained in the Acute Care Hospital form October 23, 2001 to November 2, 2001. Disputed Facts 1. Plaintiff's2 a-1. From March 14, 2001, through September 22, 2002, Plaintiff, a prisoner, and Defendants Adkison, Beer, Buckley, Butts, Castillo, Dill, Gonzales, Keener, Lloren, Marshall, Morales, Sloss and Streeter were custodial officers and/or prison administrators at CSP-Cor mainline and security housing unit ("SHU") for which Glass filed numerous inmate 602 appeals/complaints against these defendants that was the motivating factor behind Defendants custom or policy of retaliatory acts to attack, beat, sexually assault and sodomize, damage and/or steal Plaintiff's television, hearing aids, annual package, and to freeze Plaintiff's prison trust account, and that Defendant Butts filed a disciplinary falsely accusing Plaintiff of battery (but told other staff that Plaintiff did not touch him) causing Plaintiff to be assessed an 18 month SHU term in retaliation for Plaintiff filing Appeal No. CSP-C-

Though Plaintiff listed numerous factual allegations in his pretrial statement, the Court has only included those which pertain to the claims found cognizable in the October 4, 2001 screening order. 4

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5-01-2341. b-1. That the incidents in question initially originated on October 22, 2001, some twenty hours prior to Defendants'3 unprovoked, unjustified excessive force and failure to protect, to gratuitously beat up Plaintiff by stomping, kicking, and punching Plaintiff about the face, head, back, neck, and shoulders, used the sharp metal ridges of the hand cuffs and leg irons as a weapon to (dig) cause deep (gashes) cuts into Plaintiff's right wrist and left ankle who then used a PR-24 side baton to (sodomize) sexually assault Plaintiff in addition to maliciously and sadistically damaging Plaintiff's television, destroying his hearing aids and freezing Plaintiff's inmate trust account to prevent Plaintiff mailing (home) out his television and annual package in order the steal them from October 23, 2001 through September 22, 2002. c-1. On October 23, 2001, at approximately 11:30 a.m., Defendants Beer, Morales, and Sloss arrived at Plaintiff's cell without any type of movable or hand carried shell to persuade Plaintiff to cuff up and exit his cell solely to beat up Plaintiff

Plaintiff's word "conspiracy" was deleted from this statement of fact as there are no cognizable conspiracy claims in this action. (Doc. 189, Plntf. Pretrial Stmt., p. 2, ¶ 3.) (Doc. 18, Screen. F&R; Doc. 20, O. Adopt.) 5

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in retaliation for filing a prison 602. d-1. Defendant Beer is a known violent prison supervisor and Defendants Morales and Sloss are also known violent prison guards at CSP-Cor. e-1. Because Plaintiff has personal knowledge in addition to personally witnessing defendants Beer, Morales, and Sloss violent attack and beat up numerous (hand cuffed and shackled) defenseless prisoners without provocation resulting in great bodily injuries to these prisoners Plaintiff refused to submit to being handcuffed and/or being escorted by these violent prison officials to another cell without the protection of a video camera to film this cell move. f-1. Defendant Beer reported back to his immediate supervisors, Defendants Keener and Dill who gave them knowingly false information that Plaintiff has a cup of fecal matter in his cell and were threatening to gas staff in order to persuade Defendants Keener and Dill to authorize to have Plaintiff cell extracted. g-1. Defendants Keener and Dill as Defendants Beer, Sloss, and Morales immediate supervisors were absolutely aware that Defendants Beer, Morales, and Sloss were violent prison officials from the numerous CDC-837 incident reports submitted by Defendants Beer, Morales, and Sloss that they signed condoning these violent assault on 6

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prisoners who had the authority to notify and report these violent attacks to the Warden, CSPCor Internal Affairs ("IA"), and CDCR headquarters, but chose to turn a blind eye and a deaf ear to Defendants Beer, Morales, and Sloss' malfeasance and refused to discipline or recommend that they be disciplined. h-1. Defendant Marshall as chief deputy warden (hereinafter "CDW"), Institution Classification Committee (hereinafter "ICC") chairman who also acts as the warden designee was aware that Defendants Beer, Morales, and Sloss are violent prison guards from all the cell extraction video tapes he reviewed, verbal complaints from prisoners during ICC hearing and second level 602 appeals Defendant Marshall must sign alleging (inappropriate) excessive use of force involving Defendants Beer, Morales, and Sloss who had the authority to discipline and/or recommend that Defendants Beer, Morales, and Sloss be disciplined but chose to condone their egregious (misconduct) behavior by doing absolutely nothing. i-1. Defendants Buckley, Castillo, and Streeter as appeals coordinators were aware from all the 602 appeals including second level disciplinary appeals that they must respond to that Defendants Beer, Morales, and Sloss are violent prison guards that has viciously beaten and seriously injured 7

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numerous prisoners for which each had the authority to discipline or recommend discipline against Defendants Beer, Morales, and Sloss but chose to condone their egregious malfeasance by doing absolutely nothing. j-1. Defendants Keener and Dill authorized Defendant Beer to assemble a cell extraction team who after introducing themselves on video camera (falsified official state documents as peace officers Cal. Penal Code § 118.1) gave knowingly false statements to justify having Plaintiff cell extracted that Plaintiff had previously gassed staff with fecal matter and urine the day before as their reason for extracting and moving Plaintiff to a cell with a modified or extended food port (See cell extraction video tape #___)4. k-1. Defendants arranged for Psyche Tech Hance to conduct clinical intervention to persuade Plaintiff to exit the cell voluntarily oppose to having to cell extract Plaintiff. l-1. Plaintiff informed Psyche Tech Hance that he had absolutely no intention to cell extract or to be cell extracted for which Plaintiff on his own volition requested that a video camera be used to facilitate and to protect Plaintiff from

Cell extraction video tape number was blank in Plaintiff's Separate Pretrial Statement. (Doc. 189, Plntf. Pretrial Stmt., p. 3, ¶ 11.) 8

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Defendants Beer, Morales, and Sloss chicanery to inflict pain and to injure Plaintiff if he exited the cell without the video camera. m-1. Psyche Tech Hance failed to covey Plaintiff's intention to exit the cell voluntarily. n-1. At approximately 12:50 p.m., Defendants Beer, Keener, Dill, Morales, and Sloss approached Plaintiff's cell wearing extraction gear. o-1. After reading the admonishment, Defendant Keener asked if Plaintiff was willing to cuff up and exit the cell voluntarily for which Plaintiff said yes. p-1. Plaintiff attempted to (place his hands and arms through the cuff/food port slot) cuff up to exit the cell voluntarily, but Defendant Keener refused to allow Plaintiff to exit the cell voluntarily because Defendants wanted to enter the cell in order to inflict pain and to injure Plaintiff as punishment in retaliation for Plaintiff filing Appeal No. CSP-C-5-01-3399, CSP-C-5-01-1587, and CSP-C-01-1629 against Defendants Beer, Dill, and Keener. q-1. CDCR prison officials (Defendants) cannot force a prisoner into cell extracting when he had absolutely no desire or intention to cell extract, nor can prison officials humiliate a prisoner in any manner. r-1. Defendant Keener stated that Plaintiff's only option was to strip out totally nude then lie down 9

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on the ground but either way Plaintiff would be cell extracted. s-1. Plaintiff asked but received no answer from Defendant Keener as to why Plaintiff had to get totally naked and lay down on the ground oppose to simply allowing to cuff up at the cuff port and exit the cell voluntarily. t-1. The video tape of the October 23, 2001, cell extraction will prove that before Plaintiff could comply with Defendant Keener's order he had Plaintiff's cell door opened to allow Defendants Beer, Morales, and Sloss to enter the cell to stomp, kick, punch Plaintiff in the face, head, ribs, back, and shoulders in addition to using the sharp ridges of the hand cuffs and leg restraints as a weapon to cause deep cuts in Plaintiff's left ankle and wrist. v-1. Plaintiff did not resist defendants Morales and Sloss' efforts to place Plaintiff in hand cuffs and in leg restraints or else why would Plaintiff lay down on the ground. w-1. The October 23, 2001 cell extraction video tape will prove that Defendant Beer damaged Plaintiff's television set when he without provocation (hopped) jumped up and onto the bunk and onto Plaintiff's television cord (damaging) breaking the two metal prongs on the end of the cord in retaliation for filing Appeal No. CSP-C-5-01-3399. 10

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x-1. After Defendants had plaintiff beaten up, they placed Plaintiff in full mechanical restraints and then on a litter and carried Plaintiff to an outside grassy area in front of IV-A2L building. y-1. While outside in the grassy area, Defendants Keener ordered Plaintiff's only protection the video (tape) camera turned off and to stop filming to allow Defendants Beer, Morales, and Sloss to use unnecessary excessive force. z-1. As soon as the video camera was turned off Plaintiff was dragged all over the yard then beaten and sexually (sodomized) assaulted by Defendants Beer, Morales, and Sloss by ramming a PR-24 side baton weapon into Plaintiff's anus. a-2. Defendant Dill ignored Plaintiff's pleas to help Plaintiff or stop Defendants Beer, Morales, and Sloss's attack. b-2. An (M.T.A.) Raymer bandaged Plaintiff's injured ankle and wrist as Plaintiff was being dragged about the grassy area being attacked and sodomized. c-2. Defendants had no intentions on moving Glass to another cell that was more secured (only to inflict pain and injuries) but placed Plaintiff in a holding cage in a hallway between 4A2L and 4A2K buildings. d-2. After Plaintiff was placed in the hallway cage, Defendant Beer entered and began bragging and 11

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boasting how he stomped and kicked Plaintiff in the face and intentionally jumped up on the bunk and onto Plaintiff's television set cord to cause it to be damaged and to knock the television off the bunk and onto the floor who also threatened to enter the holding cage and beat up Plaintiff again. e-2. Approximately ten minutes a Sergeant K. Davis and a unknown middle-aged white male Sergeant entered the holding cage area to conduct an excessive force video and tape interview with Plaintiff due to Plaintiff alleging that Defendants used excessive force and sexually assaulting Plaintiff. f-2. Plaintiff unwrapped the bandages to reveal on video tape how serious the injuries were to his ankle and wrist. g-2. Plaintiff also pulled down his boxer shorts and revealed on video tape blood coming rom Plaintiff's anus and blood stains on the inside of Plaintiff's boxer sorts. h-2. At approximately 3:00 p.m., Plaintiff was escorted to the Active Care Hospital (hereinafter "ACH") with a spit hood on to (cover up) mask Plaintiff's black eye and swollen facial injuries. i-2. Defendants Beer and Keener ordered Dr. Meis, the ACH emergency room doctor, not to examine Plaintiff's eye or anal area or document that Plaintiff had injuries to his face and anal areas. 12

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j-2. On October 24, 2001, at about 9:30 p.m., Sergeant SC5 and Sergeant K. Davis arrived at the ACH to conduct a second excessive force video tape interview regarding the October 23, 2001 excessive use of force and sexual assault allegations. k-2. Sergeants D. Scaife and K. Davis informed Plaintiff that the first video tape depicting Plaintiff's anal injuries (allegedly) malfunctioned then destroyed by Defendants Beer, Keener, and Dill. l-2. While at the ACH, Plaintiff's left ankle became infected from the deep cut caused by Defendants' excessive use of force on October 23, 2001. m-2. On November 2, 2001, Defendant Keener informed Plaintiff that he was on strip cell status from November 2, 2001 through November 12, 2001 as punishment for Plaintiff's filing Appeal No, CSPC-5-01-1629 even though Plaintiff already completed ten day strip cell status on November 2, 2001. n-2. On November 9, 2001, Plaintiff was issued a CDC1083 property inventory sheet dated November 28, 2001 signed by Defendant Butts that was knowingly false that Plaintiff refused to sign.

It appears that Plaintiff may have intended to write "Scaife," however, his pretrial statement only uses the letters "SC" to name this sergeant. (Doc. 189, Plntf, Pretrial Stmt., p.5, ¶ 37.) 13

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o-2. This CDC-1083 property inventory sheet signed and dated by November 28, 2001 by Defendant Butts indicating that the two metal prongs on the end of Plaintiff's television cord were torn off. p-2. Defendants Beer, Butts, Keener, and Dill were the last to have possession, custody, and control of Plaintiff's television set and hearing aids on October 23, 2001 before Defendants contend that Plaintiff's television set was damaged and his hearing aids were (missing) destroyed. q-2. Defendants Adkison and Gonzales first contend that Plaintiff caused his own television set to be damaged and hearing aids to be disposed of because Plaintiff chose to cell extract. r-2. Defendants Adkison and Gonzales then altered (official state documents as peace officers) CDC1083 property sheet dated November 28, 2001 after Plaintiff proved that Defendant Butts knowingly falsified CDC-1083 property sheet who never provided Plaintiff with any opportunity to sign the property inventory sheet on October 28, 2001. s-2. On November 4, 2001, Plaintiff filed Appeal No. CSP-C-5-01-3530 asserting that Defendants Beer, Keener, Dill, Morales, and Sloss used unnecessary excessive force and sexually assaulted Plaintiff with a PR-24 side baton weapon by ramming it up Plaintiff's anus as punishment in retaliation for Plaintiff filing Appeal No CSP-C-5-01-3399 against 14

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Defendant Beer. t-2. During ICC on November 12, 2001, Plaintiff informed Defendant Marshall that Defendants Beer, Keener, Dill, Sloss, and Morales used excessive force and sodomized Plaintiff and that Defendants Beer, Butts, and Keener stole Plaintiff's hearing aids and intentionally damaged Plaintiff's television set in retaliation for Plaintiff filing 602 appeals against them. u-2. Defendant Marshall assured Plaintiff that his television set would be repaired or Plaintiff would be reimbursed because prisoners in CSP-Cor SHU do not have access to their television cord plug once the television cord is placed (into) through the wall and locked into the television cord plug lock in addition to ordering an investigation into Defendants' excessive use of force and sodomy on October 23, 2001. v-2. Defendant Marshall also instructed Plaintiff to file a 602 appeal and to hand it to CCII D. Means to investigate if indeed Plaintiff's television set was plugged into the television cord security lock plate inside the pipe chase after Plaintiff was cell extracted and admitted to the ACH on October 23, 2001. w-2. Defendants Adkison and Gonzales threatened to destroy and/or donate Plaintiff's television and that Plaintiff's only option was to mail it away 15

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from the prison. x-2. Plaintiff gave CCII D. Means a 602 Appeal regarding Plaintiff's damages on November 12, 2001 as instructed by Defendant Marshall. y-2. On November 9. 2001, Plaintiff sent a 602 appeal to Appeals Coordinators Defendants Buckley, Castillo, and Streeter alleging that Defendants Beer and Butts intentionally damaged Plaintiff's television set and stole Plaintiff's hearing aids in retaliation for filing prison grievances against them. z-2. Defendants Buckley, Castillo, and Streeter refused to log, process, or respond to appeal dated November 9, 2001, but withheld6 this appeal for several months and then contend that it was a previous appeal that Plaintiff filed before this appeal that had already been responded to. a-3. On November 20, 2001, Plaintiff filed Appeal No. 04A-01-12-008 requesting that Defendant T. Lloren remove old photo copying charges from Plaintiff's trust account forthwith. b-3. On December 24, 2001, Defendant Lloren granted Plaintiff's request on Appeal No. 04A-01-12-008,

Plaintiff's phrase "conspired with Defendants Adkison and Gonzales to" was deleted from this statement of fact as there are no cognizable conspiracy claims in this action. (Doc. 189, Plntf. Pretrial Stmt., p. 7, ¶ 53; Doc. 18, Screen. F&R; Doc. 20, O. Adopt.) 16

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however in retaliation for filing this appeal, Defendant Lloren put a total freeze on Plaintiff's trust account unless Plaintiff paid $5.85 twice, and on the same day Plaintiff received funds on his account from family to mail out and repair his television. c-3. Before filing Appeal No. 04A-01-12-008, and Defendant Lloren freezing Plaintiff's trust account in retaliation, Defendant Lloren processed all CDC-182 canteen draw orders and CDC-193 trust account withdrawal orders without Plaintiff's trust account being frozen unless Plaintiff paid the $5.85 twice. d-3. On December 5, 2001, Plaintiff sent Defendants Adkison and Gonzales two separate property appeals, one in which to have Plaintiff's damaged television repaired and the other to hold Plaintiff's television for 90 days pending the resolution of any and all property appeals regarding Plaintiff's damaged television. e-3. Defendants Dill, Keener, and Beer as 4A facility administrators and Defendants Adkison and Gonzales as 4A property officers were unlawfully flagging all of Plaintiff's incoming and outgoing personal mail for the sole purpose to misappropriate Plaintiff's annual package. f-3. On or about January 10, 2002, an insured annual package arrived at (CSP-Cor) for Plaintiff from 17

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his (family) sisters, Mrs. Dorris L. Davis and Mrs. Michelle Franklin with a package label affixed to the outside of the box. g-3. Defendants arranged for Sergeant Rangel the receiving and release ("R&R") sergeant to open Plaintiff's annual package (without Plaintiff's knowledge that a package had arrived for him) then returned it to Plaintiff's family in violation of CDCR and CSP-Cor policy and procedure oppose to issuing it to Plaintiff. h-3. Sergeant Rangel gave Mrs. Davis knowingly false and erroneous instructions to (mail) send the package back to CSP-Cor without another package address label affixed to the outside of the box, or to reinsure it again, but to address it in care of a (C/O) Smith a fictitious (R&R) staff to harass and frustrate Mrs. Davis after she called the institution to inquire why the package was returned to her. i-3. After Mrs. Davis followed (R&R) Sgt. Rangel's instructions he delivered it to Defendants Adkison and Gonzales and instructed them to deem it as (contraband) unauthorized. j-3. On February 1, 2002, Defendants Adkison and Gonzales sent Plaintiff a CDC-128-B-chrono stating that an unauthorized annual package arrived at CSP-Cor for Plaintiff without a package address label for affixed to the outside of the box and in 18

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care of a (C/O) Smith. k-3. As with Plaintiff's damaged television set, Defendants Adkison and Gonzales stated that Plaintiff's only option was to mail his annual package (away from the prison) home. l-3. Plaintiff submitted numerous CDC-193 trust account withdrawal orders requesting Defendants Lloren, Adkison, and Gonzales to remove appropriate funds from Plaintiff's account to allow Plaintiff to mail out his television set and annual package. m-3. Defendant Lloren informed Plaintiff again that his trust account was frozen until Plaintiff paid $5.85 twice for Plaintiff's allegedly damaging a state sheet and T-shirt. n-3. From December 24, 2001 through February 26, 2002, Plaintiff received a total of $120.00 to mail out his television set and annual package. o-3. Defendant Lloren knowingly mismanaged Plaintiff's trust account by refusing to allow Plaintiff to use his funds (for any reason) to mail out his damaged television set and annual package. p-3. Plaintiff has filed numerous 602 appeals as to all the claims against Defendants in this federal lawsuit. q-3. Exhaustion of administrative remedies have been waived by Defendants in this action. r-3. What prompted Defendants to decide to cell extra extract Plaintiff and to use unnecessary and 19

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unprovoked excessive force and to sexually assault Plaintiff on October 23, 2001 as punishment and in retaliation for Plaintiff filing Appeal No. CSP-C5-01-3399 against Defendant Beer for an incident that occurred on October 22, 2001, the morning before when Defendant Beer threatened to beat up Plaintiff in addition to him spreading rumors that were knowingly false that Plaintiff is a snitch and has HIV-AIDS. However Defendants make several

knowingly false statements on the October 23, 2001 cell extraction video tape that they contend were the reasons for having Plaintiff cell extracted that (1.) Plaintiff (threw feces) gassed (guards)

staff the other day, (2.) Plaintiff was in possession of a cup of fecal matter and threatened to gas staff again, and (3.)Plaintiff was refusing to be moved to a modified cell with an extended food port. s-3. Defendants as prison officials are their own police who "can and do say" anything they want in their reports or on video tape for cell extracting (a prisoner) Plaintiff, or as to their reasons for using unprovoked and unjustified excessive force to injure and sodomize Plaintiff in order to justify the retaliatory and gratuitous beating on October 23, 2001. t-3. Defendants dispute that they were motivated by retaliation for Plaintiff filing Appeal No. CSP-C20

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5-01-3399, CSP-C-5-01-1587, and CSP-C-5-01-1638 against Defendants Beer, Keener, and Dill respectively in order to beat up Plaintiff and sodomize him when they assembled an extraction team to have Plaintiff cell extracted on October 23, 2001. u-3. Defendants failed to follow (CDCR) and (CSP-Cor) cell extraction policies and procedures before opening Plaintiff's cell door and endangering Plaintiff's life and seriously injuring him. v-3. Defendant Keener had absolutely no intention of allowing Plaintiff (adequate time) to cuff up and exit the cell voluntarily because defendants only intentions were cell extract and seriously injure Plaintiff. w-3. Defendants Dill, Keener, Beer, Morales, and Sloss as prison officials cannot force or compel Plaintiff or any prisoner into cell extracting by giving Plaintiff unlawful orders to disrobe and then lay on the ground on his stomach oppose to simply allowing Plaintiff to cuff up at the food port and exit the cell voluntarily and (CDCR) and CSP-Cor) policy. x-3. There is a dispute whether the first excessive force interview video tape film depicting Plaintiff's anal injury on October 23, 2001 actually malfunctioned or intentionally/deliberately destroyed by Defendants 21

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Dill, Keener, and Beer or liable for destruction of evidence in a federal lawsuit. y-3. There is a dispute whether Defendants Dill, Marshall, Keener, and Beer deliberately (caused the destruction) destroyed evidence in a federal lawsuit; the third excessive force interview video tape filmed on December 28, 2001. z-3. There is a dispute whether or not a prisoner on 4A facility has access to the end of their television set cord (any time they want) on their own after the television cord and plug-is inserted through the hole in the wall then locked into a security plate. a-4. A dispute exists as to whether Plaintiff's (television set and hearing aids) property remained in cell 4A2L-44 from October 23, 2001 through October 28, 2001, or did Defendants Beer, Butts , Keener , and Dill remove Plaintiff's property from the cell and leave it unsecured in 4A2L-Rotunda hallway for five days. b-4. There is a dispute whether Defendant Butts gave Plaintiff an opportunity to sign or refuse to sign the CDC-1083 property inventory sheet dated October 28, 2001, or did Defendant Butts knowingly falsify official documents as a peace officer; CDC-1083-property inventory sheet when he wrote on the sheet that Plaintiff refused to sign this sheet. 22

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c-4. Defendant Keener disputes that he signed a CDC­128-B-chrono dated November 2, 2001, placing Plaintiff on strip cell status from November 2, 2001 through November 12, 2001 for ten days even though Plaintiff already served ten days strip cell. d-4. Defendant T. Lloren disputes that she placed a hold of $5.85 twice on Plaintiff trust account 2001 for Plaintiff allegedly damaging a sheet and a tee-shirt. e-4. Defendant T. Lloren disputes that she froze Plaintiff's trust account to prevent Plaintiff from using his funds to mail out his television set for repair. f-4. Defendant Lloren disputes that she froze Plaintiff's trust account to prevent Plaintiff from using his funds for any reason but, process trust withdrawal orders allowing CSP-Cor, CDCR, and other officials to use Plaintiff's funds in his account. g-4. Defendant Lloren disputes that she mismanaged Plaintiff's trust account and froze it in retaliation for Plaintiff filing Appeal No. 04A01-12-008. h-4. Defendants Adkison, Gonzales, and Lloren dispute that they refused to process any and all of the CDC-193 trust account withdrawal orders Plaintiff submitted from December 29, 2001 through March 1, 23

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2002 to pay the $5.85 double charge hold and allow Plaintiff to pay to mail out his television and now annual package until it was too late to do so. i-4. Plaintiff disputes that he had to pay $5.85 (twice) or any amount of money first for a damaged state property hold (extortion) before Defendant Lloren would process CDC-193 trust account withdrawal orders to allow Plaintiff to use his funds to mail out his television for repair and annual package home. j-4. Defendants Dill, Keener, Beer, Adkison, and Gonzales dispute that Plaintiff's annual package arrived at CSP-Cor twice and that it was opened up the first time by Sergeant Rangel in early January 2002 and mailed back to Plaintiff's family on its own postage to harass Plaintiff's family and as punishment in retaliation for Plaintiff filing numerous prison grievances against Defendants. k-4. Defendants dispute that they, or any other (CSPCor) official gave Plaintiff's sister Mrs. Dorris L. Davis knowingly false and erroneous instruction how to go about returning Plaintiff's annual package to (CSP-Cor)after it was properly mailed to CSP-Cor in January 2002 then opened and returned to Plaintiff's family. l-4. Defendants dispute that they had a duty (under federal law) to notify Plaintiff that federal mail package had arrived for him at (CSP-Cor) before 24

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opening it up and mailing it back to Plaintiff's family. m-4. Defendants Adkison and Gonzales dispute that they were tampering with Plaintiff's out-going federal mail and in possession of a letter Plaintiff mailed to his sister Mrs. Dorris Linda Davis. n-4. Defendants Adkison, Butts, and Gonzales dispute that they could have early repaired Plaintiff's television. o-4. Defendants Dill, Marshall, Butts, Beer, and Keener dispute that they had to replace Plaintiff's hearing aids. p-4. Defendants dispute that there exists a custom or policy of retaliatory acts at CSP-Cor against Plaintiff for filing 602 prisoner grievances and federal lawsuits against (CDCR) CSP-Cor officials. Defendants' a. Whether it was necessary to remove Plaintiff from his cell on October 23, 2001, because he had accumulated feces in his cell and threatened to throw it on staff. Whether Plaintiff refused a direct order to remove his clothing for the purpose of being searched. Whether Plaintiff refused orders to submit to handcuffs. Whether it was appropriate for Defendants to order Plaintiff to get down on the floor before they entered the cell. 25

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e.

Whether Plaintiff was naked when he was ordered to get down in the floor.

f.

Whether any of the Defendants used excessive force when Plaintiff was removed from his cell.

g.

Whether any of the Defendants used excessive force after Plaintiff was taken out to the prison yard.

h. i.

Whether Plaintiff was sexually assaulted. Whether Plaintiff incurred more than a de-minimus injury.

j.

Whether the cell extraction was done for the purpose of retaliating against Plaintiff.

k.

Whether any of Plaintiff's property was taken or damaged for the purpose of retaliating against him.

l.

Whether Plaintiff was prescribed hearing aids, and if so, were they his personal property, or the property of the prison.

m.

Whether a hold was placed on Plaintiff's trust account for the purpose of retaliating against him.

n.

Whether an incoming package was rejected for the purpose of retaliating against Plaintiff.

o.

Whether Plaintiff was found guilty of a disciplinary infraction and assessed a determinate term of confinement in a Security Housing Unit for the purpose of retaliating against him.

p.

Whether Defendant Beer told other inmates that Plaintiff was a child molester and had AIDS for 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. c. b. 1. r. q.

the purpose of retaliating against him. Whether Plaintiff has a prior arrest for lewd and lascivious conduct with a minor child, and a conviction for sexual battery. Whether Defendant Beer placed Plaintiff in a holding cell for the purpose of retaliating against him. IV. Plaintiff's DISPUTED EVIDENTIARY ISSUES

Pursuant to the Federal Rules of Evidence, Plaintiff respectfully objects to the admissibility of any and/or all references to the following: a. Plaintiff's criminal (convictions) history prior or past; Plaintiff's prior CDC Rules Violation Reports (RVR) or Rule Infractions allegedly committed while in custody of the CDCR both before and after October 223, 2001; Plaintiff's incarcerated witnesses' criminal convictions or history; Plaintiff's incarcerated witnesses' disciplinary record and/or any criminal convictions or misconduct during their incarceration; Plaintiff bases his dispute as to the above evidentiary issues on the basis that the record is already established which reflects Plaintiff is a prison litigant and that Plaintiff and his witnesses are incarcerated under the jurisdiction of CDCR, and any such reference would only serve to prejudice the jury 27

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against Plaintiff and his witnesses at trial.7 Plaintiff further raises evidentiary issues as to: e. the foundation as to the whereabouts of two (2) excessive force interview video tapes filmed/conducted by Sergeant K. Davis on October 23, 2001 at approximately 2:00 p.m.; f. the foundation for Defendants to stipulate and/or concede that they destroyed or caused to be destroyed the October 23, 2001 excessive force interview videotape because it depicted that Plaintiff had blood coming from his anus, blood inside his boxer shorts, deep cuts in Plaintiff's left ankle and wrist, and was in sever pain; g. the personal files of Defendants Beer and Morales containing or pertaining to any and all Internal Affairs ("I/A") reports only that Defendants Beer and Morales are violent prison officials and that Defendants Marshall, Dill, V. Castillo, Buckley, Streeter, and Keener were aware that Defendants Beer and Morales were beating up or had beaten up an untold number of prisoners and that they were violent prison officials; h. the admissibility of testimony of Plaintiff's

Plaintiff repeats some of his arguments raised in his motions for attendance of incarcerated witnesses that were addressed in the order issued thereon, and which are not addressed herein as they are not appropriately repeated and/or entertained in a final pretrial order. (Doc. 189, Plntf. Pretrial Stmt., 11:6-19; Doc. 205, O on Incarc. Wit.) 28

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. h. g. f. e. d. c. b. 2.

purported experts ­ Plaintiff intends to call Michael Mayda and Doctor Johnson to testify as expert witnesses. Defendants'

Defendants offer that the following evidentiary disputes can be addressed in motions in limine, or can be raised at trial at the time Plaintiff seeks to admit the evidence or exhibit: a. Whether Plaintiff's criminal history is admissible for any purpose. Whether Plaintiff's extensive disciplinary history is admissible for any purpose. Whether the criminal history of incarnated witnesses is admissible for any purpose. Whether the disciplinary history of incarcerated witness is admissible for any purpose. Whether Defendants' personnel records are admissible for any purpose. Whether copies of regulations, manuals or operational procedures of the Department of Corrections and Rehabilitation and Corcoran State prison are admissible exhibits. Whether copies of appeals filed by Plaintiff's inmate witnesses are admissible for any purpose. Whether Defendants' discovery responses are admissible for any purpose other than impeachment. Whether any of Plaintiff's administrative appeals are admissible for any purpose other than impeachment. 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

j.

Whether Plaintiff's proposed witnesses can offer their opinion of the character of the Defendants.

k.

Whether evidence of accusations of prior bad acts by the Defendants is admissible for any purpose.

l.

Whether the use of Plaintiff's deposition should be limited to impeachment only.

m.

Whether the operative complaint in this case is hearsay and inadmissible.

n.

Whether Plaintiff can offer testimony that Defendants deliberately destroyed video tapes.

o.

Whether the declarations of other inmates are admissible for any purpose. V. SPECIAL FACTUAL INFORMATION

Local Rule 281, based on Fed. R. Civ. P. 16, requires parties to state special factual information in certain actions ­ none of which are raised in this case. VI. RELIEF SOUGHT

Plaintiff seeks declaratory and injunctive relief, monetary damages (both compensatory and punitive), and costs of suit. Defendants seek dismissal and costs of suit. VII. Plaintiff's Plaintiff contends that his injuries are more than sufficient to garner constitutional recognition. Plaintiff's DISPUTED ISSUES OF LAW

injuries consist of bleeding, bruising, as sever pain in Plaintiff's rectal/rectum area after Defendants used a foreign object: APR-24 to sexually assault and sodomize Plaintiff; a black left eye, deep cuts to Plaintiff's left ankle (which became 30

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infected) and right wrist, pain and swelling to Plaintiff's face, head, back, neck, ribs and shoulders from being stomped and kicked in violation of the cruel and unusual punishment clause of the Eight Amendment. In addition, Plaintiff's First and Fourteenth Amendment rights were violated sufficiently to garner constitutional recognition as to the Defendants beating up and sodomizing him with a foreign object which amount to punishment without due process. The intentional destruction of Plaintiff's television

and hearing aids, the freezing and intentional mismanagement of Plaintiff's prison trust account to prevent Plaintiff from mailing out his television and annual package resulting in (other) Defendants misappropriating them, filing a disciplinary report that was knowingly false resulting in Plaintiff being assessed an eighteen month SHU term. The Defendants did these

acts as punishment and in retaliation for Plaintiff exercising his First and Fourteenth Amendment rights to petition the court and federal government through (the prison) grievances. Wherefore, Plaintiff has sustained irreparable physical, mental, and emotional injuries to his First, Eighth, and Fourteenth Amendment rights for which such injuries are "repugnant to the conscious of mankind." See Hudson v.

McMillian, 503 U.S. 1, 7-8, 10 (1992); see also United States v. Lanier, 520 U.S. 259 (1997); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). 1. Excessive Force

The use of excessive force by prison officials violates the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1 (1992). 31 In

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excessive force cases, "the core judicial inquiry" is "whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7 (quoting Whitley v. Albers, 475 U.S. 274, 287 (1997). The law of excessive force in this country is that a prisoner cannot be subjected to gratuitous or disproportionate force that has no object but to inflict pain. at 320-21. To determine whether the use of force violates the Eight Amendment, the court should consider the "extent of injury . . . the need for application of force, the relationship between the need and the amount of force used, the threat `reasonably perceived by the responsible officials and any efforts made to temper the severity of a forceful response." 1 (quoting Whitley, 475 U.S. at 321). Hudson, 503 U.S. at Whitley, 475 U.S.

See also Lemaire v. Maass,

12 F.3d at 1454, Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979). 2. Sexual Assault-Sodomy

A sexual assault on an inmate by a guard . . . regardless of the gender of the guard or the prisoner . . . is deeply "offensive to human dignity." Schwenk v. Hartford, 204 F.3d 1187 Being violently

(9th Cir. 2000) (quoting Hudson, 503 U.S. at 9.

assaulted in prison is simply not "part of the penalty that criminal offenders pay for their offenses against society." Farmer v. Brennan, 511 U.S. 825, 834 (1991). Where guards themselves are responsible for the rape and sexual abuse/sodomy of inmates, qualified immunity offer no 32

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shield.

Schwenk, 204 F.3d at 1197 (quoting Mathie v. Fries, 935

F.Supp. 1284, 1301 (E.D. N.Y. 1996); see also Women Prisoners of the Dist of Columbia Dept of Corrections v. District of Columbia, 877 F.Supp. 634, 665 (D.D.C. 1994) ("rape, coerced sodomy, unsolicited touching of women prisoners' vaginas, breasts, and buttocks by prison employees are `simply not part of the penalty that criminal offenders pay for their offenses against society'")Farmer, id. As a result, in Farmer the Supreme Court

held that prison officials may be held liable under the Eight Amendment for the rape of a transsexual inmate by another inmate if the officials knew but disregarded that that inmate faced substantial risk of serious harm. See United States v. Lanier,

520 U.S. 259, 270 (1997); see also Boddie v. Schnieder, 105 F.3d 857 (2nd Cir. 1997) which established that sexual assault of a prison inmate by a prison employee serves no legitimate punitive purpose. 3. Id. at 861. Failure to Protect

Prison officials have a duty to take reasonable steps to protect inmates from harm. (9th Cir. 1982). Hoptowit v. Ray, 682 F.2d 1237, 1250

The failure to protect an inmate from attacks

may give rise to a constitutional violation if prison officials deliberately or recklessly disregard an inmates' safety. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Berg v.

It has clearly

been established that prisoners have a right to (be) protection while incarcerated. See Farmer v. Brennan, 511 U.S. 825 (1994).

A prison official duty under the eighth amendment is to ensure "reasonable safety." (1993). 33 See also Helling v. McKinney, 509 U.S. 25

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To be liable for failing to protect an inmate, a prison official must be aware of sufficient information about a particular danger which, in turn gives rise to an affirmative duty to protect the threatened inmate. Berg, 794 F.2d at 460. A

prisoner must also show a culpable state of mind on the part of prison officials. 4. Farmer, 511 U.S. at 838-39.

Federal Retaliation

To establish a claim of retaliation under 42 U.S.C. § 1983 a plaintiff must first establish that he engaged in constitutionally protected activity and that his conduct was a substantial or motivating factor behind the supposedly retaliatory acts. Mt. Healthy City school Dist. Bd. Of Edu.

Doyle, 429 U.S. 274, 287 (1977); see also Soranno's Gas-Co Inc. V. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Within the prison context, a claim of first amendment retaliation entails the following five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of the first amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 568 (9th Cir. 2005). "Of fundamental import to prisoners are their first amendment right[s] to file prison grievances," Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003), and to "pursue civil rights litigation in court" Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). Without these bedrock constitutional guarantees, Rhodes v. Robinson, 408 F.3d 559,

inmates would be left with no viable mechanism to remedy prison 34

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injustices, and because purely retaliatory actions taken against a prisoner for having exercised those rights necessarily undermine those protections, such actions violate the constitution quite apart from any underlying misconduct they are designed to shield. See e.g., Pratt v. Rowland, 65 F.3d 802,

806, n.4 (9th Cir. 1995) ("[T]he prohibition against retaliatory punishment is `clearly established law' in the Ninth Circuit, for qualified immunity purposes.") B. Defendants Defendants state that Plaintiff brings this action under 42 U.S.C. § 1983, alleging Defendants violated his Eighth Amendment rights and retaliated against him. Federal law governs this action. 1. Eighth Amendment Claims

The Eighth Amendment's Cruel and Unusual Punishment Clause prohibits the "unnecessary and wanton infliction of pain" on prison inmates. See Hudson v. McMillian, 503 U.S. 1, 5 (1992); In cases involving

Estelle v. Gamble, 429 U.S. at 102-03 (1976).

allegations of excessive use of force, "the core judicial inquiry" is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 5. A use of force has both

subjective and objective components.

A court must consider

whether the prison official acted with a "sufficiently culpable state of mind" and if the alleged wrongdoing was objectively "harmful enough" to establish a constitutional violation. Id.

In considering an excessive force claim, the court should examine several factors, including: (1) the need for an 35

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application of force; (2) the relationship between the need and amount of force used; (3) the threat to the safety of staff and other inmates; (4) any efforts made to temper the severity of a forceful response; and (5) the extent of injury inflicted. Whitley v. Albers, 475 U.S. 312, 321 (1986). With regard to the

last of these factors, while a plaintiff need not demonstrate a significant injury to state a claim for excessive force under the Eighth Amendment, "a claim ordinarily cannot be predicated on a de minimus use of physical force." Id. at 320-21. "The Eighth

Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimus uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." at 9-10. Hudson, 503 U.S.

Moreover, wide-ranging deference is given to prison

administrators in the adoption and execution of the policies and practices that in their judgment are considered necessary in the preservation of the institution's security, order and discipline. Bell v. Wolfish, 441 U.S. 520, 547 (1979). That deference

extends to prison security measures taken in response to an actual confrontation, and to deterrent measures designed to reduce incidents of prison disciplinary breaches. U.S. at 322. Whitley, 475

"It does not insulate from review actions taken in

bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice." Id.

In addition, California Code of Regulations, title 15, section 3268, sets forth CDCR's policy governing use of force. Under that policy, reasonable force is defined as "the force that 36

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an objective, trained and competent correctional employee, faced with similar facts and circumstances, would consider necessary and reasonable to subdue an attacker, overcome resistance, effect custody, or gain compliance with a lawful order." Regs. tit.15, § 3268(a)(1). Cal. Code

Moreover, excessive force is defined

as "the use of more force than is objectively reasonable to accomplish a lawful purpose." 3268(a)(3). Defendants argue that Plaintiff cannot demonstrate that the Defendants acted maliciously and sadistically when applying the amount of force necessary to maintain safety, security, and order in the face of the confrontation with Plaintiff. 2. Retaliation Cal. Code Regs. tit.15, §

Within the prison context, a viable First Amendment retaliation claim requires that Plaintiff establish the following five elements: (1) that a state actor took some adverse action against him (2) because of (3) Plaintiff's protected conduct, and that such action (4) chilled Plaintiff's exercise of his First Amendment rights; and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Plaintiff bears the burden of setting forth

facts that satisfy each and every element necessary for a prima facie case of retaliation. Rhodes, 408 F.3d at 568. The

"chilling" inquiry for First Amendment purposes here is whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. Id. at 568-69

(citing Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999)). 37 Defendants argue that

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff cannot establish that Defendants took action against him because of his protected conduct. Defendants further argue

that Plaintiff cannot demonstrate that Defendants' action did not have a legitimate correctional goal. 3. Causation

Liability under 42 U.S.C. § 1983 can be established by showing that a defendant either personally participated in a deprivation of the plaintiff's rights, or caused such deprivation to occur. Arnold v. International Business Machines Corp., 637 Under 42 U.S.C. §1983, there

F.2d 1350, 1355 (9th Cir. 1981).

must be an actual connection or link between the actions of a defendant and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Dep't of Social Services, 436 U.S. A person

658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976).

"subjects" another to the deprivation of a constitutional right within the meaning of the statute, if he does an affirmative act, participates in another's affirmative acts, or fails to perform an act which he is legally required to do that causes the claimed deprivation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); The

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Plaintiff must demonstrate that a particular defendant was the "actual and proximate cause" of his injuries. 633-34. 4. Qualified Immunity Leer, 844 F.2d at

The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have 38

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known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." 335, 341 (1986). Malley v. Briggs, 475 U.S.

Thus, the standard allows "ample room for

mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law," and applies even when wrongful conduct occurs. Richardson v. McKnight, 521 U.S. 399, 403 (1997); Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal quotations omitted). In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Court set forth the required two-part analysis in ruling on qualified immunity. First, "[t]aken in the light most favorable to the

party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? . . . constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. If, on the other hand, a constitutional violation could be made out, the court must determine whether the right was clearly established. Id. "This inquiry, it is vital to note, must be If no

undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable." Id. Thus,

in determining whether a right is clearly established, the court must determine "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202 (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999) 39

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("[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established"). The Supreme Court clarified the Saucier two-part analysis in Pearson v. Callahan, 555 U.S. ____, 2009 U.S. LEXIS 591, *15 (U.S. Jan. 21, 2009), holding that the Court may exercise its discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first. Therefore,

"regardless of whether the constitutional violation occurred the [official] should prevail if the right asserted by the plaintiff was not "`clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991); Pearson, 555 U.S. ____, 2009 U.S. LEXIS 591 at *15. argue that they are entitled to qualified immunity. Defendants Defendants

will need to take the proper steps as required under the Federal Rules of Civil Procedure to preserve any such entitlement. 5. Impeachment by Evidence of Prior Felony Convictions

Defendants also argue that the verdict in this case will be decided by the jury after consideration of each witness's credibility. Plaintiff, to meet his burden of proof at trial, is He has also

expected to testify to his version of the events. identified other inmates as witnesses for trial.

Rule 609 of the Federal Rules of Evidence provides that evidence of a witness's prior felony conviction may be used to impeach that witness's testimony. Defendants contend that no one

who has a prior felony conviction is entitled to the false aura of veracity, which would occur if impeachment of the Plaintiff 40

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and his additional inmate witnesses were not allowed.

U.S. v.

Bernal-Obeso, 989 F.2d 331, 336 (9th Cir. 1993) ("As any trial lawyer knows, felony convictions trench heavily upon such a person's credibility"). Accordingly, Defendants will seek to

impeach Plaintiff's trial testimony, with evidence of their prior felony convictions. 6. Punitive Damages

Defendants also argue that Plaintiff is not entitled to punitive damages. The Supreme Court has determined that punitive

damages are available in a section 1983 action only when the defendant's conduct is shown to be motivated by evil motive or intent or when it involves reckless or callous indifference to the federally protected rights of others. U.S. 30, 51 (1983). It is not enough that defendants may have acted in an objectively unreasonable manner; their subjective state of mind must be assessed. (10th Cir. 1989). Wulf v. City of Wichita, 883 F.2d 842, 867 Where there is no evidence that a § 1983 Smith v. Wade, 461

defendant has acted with evil intent, there is no legal right to punitive damages. (9th Cir. 1991). VIII. A. Plaintiff Although no issues have been intentionally abandoned by either side, the issues initially framed by the pleadings have been narrowed by the Court's December 14, 2004 findings and recommendations recommending dismissal of Glass' Religious Land Use and Institutionalized Persons Act ("RLUIPA") 42 U.S.C. § 41 ABANDONED ISSUES Ward v. City of San Jose, 967 F.2d 280, 286

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2000cc-1, First Amendment religious claims, Eighth Amendment medical claims, and Fourteenth Amendment equal protection, due process, and privileges and immunity claims against Defendants Meis, Anderson, Rousseau, Yamit, and Raymer.8 F&R.) B. Defendants Defendants represent that they have not abandoned any issues or affirmative defenses which were raised in their answer. IX. A. Plaintiff 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Incarcerated Witness Wittier Buchanan (K02554); Incarcerated Witness Jason Ortiz (P72425); Incarcerated Witness Robert S. Milton (J06653); Incarcerated Witness Rodney Fleming (E09596); Incarcerated Witness Eric Jackson (D47735); Incarcerated Witness James Thompson (C89908); Incarcerated Witness John Brown; Incarcerated Witness Lamont Rencher (D73399); Incarcerated Witness David W. Smith (K78326); Registered Nurse L.T. Koeppe; Correctional Sergeant D. B. Scaife; WITNESSES (Doc. 18, Screen

Plaintiff indicates that "in the event [he] is unsuccessful at trial, [he intends] to re-allege his `RLUIPA' and First Amendment religious claims against Defendants Adkison and Gonzales and Eight Amendment medical claims against Defendants Meis and Raymer on appeal." (Doc. 189, Plnt. Pretrial Stmt., p. 17.) However, Plaintiff's religious claims under the RLUIPA and the First Amendment have already been found uncognizable and dismissed from this action. (Doc. 18, Screening F&R; Doc. 20, Order Adopting.) 42

8

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12. 13.

Correctional Sergeant V. Rangel; and Doris Linda Davis.

Plaintiff requests the right to reserve introducing additional unincarcerated witnesses as may be deemed necessary or appropriate at the time of trial, specifically Dr. Johnson. (Doc. 189, Plntf. Pretrial Stmt., p. 18.) In his disputed evidentiary

issues Plaintiff states that he intends to call "Michael Mayda and Doctor Johnson to testify as expert witnesses." 12:1-3.) Plaintiff was notified in the Second Scheduling Order, filed September 15, 2009, that if he desired to have the Marshall serve any unincarcerated witnesses who refuse to testify voluntarily, he must have notified the Court in writing of such witnesses' name and location for the Court to calculate and notify Plaintiff of the requisite sums to submit for witness fees in the form of a money order. This process must have been completed in time for (Id. at

Plaintiff to submit money orders for witness fees to the Court on or before January 12, 2010. Plaintiff complied with these

requirements as to R.N. Koeppe, Sgt. Scaife, and Sgt. Rangel, but he did not comply with those requirements as to either Dr. Johnson or Michael Mayda. Thus, Plaintiff may not call either

Dr. Johnson or Michael Mayda as a witness at the trial of this matter unless Dr. Johnson and/or Michael Mayda has agreed to testify voluntarily and will appear at trial without being subpoenaed. Plaintiff was also informed in the Second Scheduling Order, filed September 15, 2009, of the procedures for calling incarcerated witnesses. Specifically, Plaintiff was informed 43

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that in order to call incarcerated person as trial witnesses, Plaintiff must serve and file with his pretrial statement a written "Motion for Attendance of Incarcerated Witnesses." Plaintiff filed six such motions. In the order issued, March 3,

2010, Plaintiff's motion for attendance of incarcerated witness Wittier Buchanan (K02554) was granted, and all others were denied. (Doc. 205, O Incarc. Wit.)

Plaintiff filed a request for reconsideration of the ruling as to his motion for attendance of incarcerated witnesses which was argued, submitted, and denied at the pretrial conference. Defendants are to submit an order for review and issuance denying Plaintiff's motion for reconsideration. B. Defendants The following persons, whose address is California State Prison ­ Corcoran, 4001 King Ave., Corcoran, CA 93212: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. J.A. Keener, Correctional Lieutenant; T. Banks, Correctional Officer; T. Hieng, Correctional Officer; M.K. Anderson, Correctional Officer; D. Davis, M.D.; K. Gooch, Correctional Officer; S. Hance, Psychiatric Technician; D. Key, Correctional Officer; M. Lui, M.D.; S. Meis, M.D.; R. Rayner, Medical Technician Assistant; R. Sloss, Correctional Officer; F. Yamat, Correctional Officer; 44

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14. 15. 16. 17. 18. 19.

R. Beer, Correctional Sergeant; T. Lloren, Office Assistant; J. Buckley, Correctional Counselor II; D. Scaife, Sergeant; K. Davis, Sergeant; and Custodians of Plaintiff's central file and medical records.

The following person whose address is: California Men's Colony, Highway 1, San Luis Obispo, CA 93409: 20. J. Marshall, Warden. The following persons whose address is through counsel: 21. N. Dill, Facility Captain, retired. 22. B. Streeter, Correctional Counselor II, retired; 23. D. Morales, Correctional Officer, retired; 24. V. Castillo, Correctional Counselor II, retired; and 25. W. Butts, Correctional Officer, retired. Counsel are each ordered to submit a list of witnesses to the court along with a copy for use by the Courtroom Deputy Clerk, on the same date and at the same time as the list of exhibits are to be submitted as ordered below. CAUTION Counsel are cautioned that expert witnesses, including percipient experts, must be designated as such. No witness, not

identified as a witness in this order, including "rebuttal" witnesses, will be sworn or permitted to testify at trial. X. EXHIBITS, SCHEDULES AND SUMMARIES

The following is a list of documents or other exhibits that the parties expect to offer at trial. 45

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CAUTION Only exhibits so listed will be permitted to be offered into evidence at trial, except as may be otherwise provided in this order. No exhibit not designated in this pretrial order shall be

marked for identification or admitted into evidence at trial. Because of the logistic circumstances of a case such as this, any party may raise objections and/or address disputes with an opposing party's exhibits prior to the start of trial on May 11, 2010. A. Plaintiff's Exhibits 1. Glass' Medical files, the portions from 2001 through 2004. 2. 3. The October 23, 2001 cell extraction video tape film. The first excessive force interview video tape conducted approximately forty-five (45) minutes after the cell extraction, video tape was filmed on October 23, 2001. 4. The second excessive force interview video tape conducted by Sergeants Scaife and K. Davis on October 24, 2001 at the Acute Care Hospital. 5. The third and fourth video tapes over all excessive force interview video tape, conducted by Sergeants J. Baston and Scaife on December 28, 2001. 6. The portions of Glass' CDC-Appe