Barnett v. Norman, et al.

Filing 389

ORDER Regarding Defendants' Objections to Pretrial Order, signed by Magistrate Judge Barbara A. McAuliffe on 1/12/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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v.

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TROAS V. BARNETT,

MARTIN GAMBOA, et al.,
Defendants.

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Case No.: 1:05-cv-01022-BAM (PC)
ORDER REGARDING DEFENDANTS’
OBJECTIONS TO PRETRIAL ORDER
(ECF No. 385)

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Plaintiff Troas Barnett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s claims that

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Defendants Gamboa, Duran, and Torres used excessive physical force against him in violation of his

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rights under the Eighth Amendment of the United States Constitution, and that Defendant Torres

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failed to intervene to protect Plaintiff from harm in violation of his rights under the Eighth

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Amendment. The parties have consented to magistrate judge jurisdiction. (ECF Nos. 9, 62.) A jury

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trial is set to commence in this matter on February 23, 2016.
On January 7, 2016, Defendants filed timely objections to the Court’s December 18, 2015

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pretrial order in this matter. (ECF No. 385.) Defendants first seek clarification as to whether the facts

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set forth as “Plaintiff’s Undisputed Facts” in the pretrial order will be treated by the Court as

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undisputed by both parties. (ECF No. 385, pp. 1-2.) Since the parties submitted separate pretrial

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statements, the Court has set forth in the pretrial order the facts each party asserted were undisputed.

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To the extent that both parties’ facts are in agreement, the Court will treat them as undisputed.

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Defendants also request that certain factual issues that Plaintiff listed as disputed be added to

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their own list of disputed factual issues in the pretrial order. These issues include whether the

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Defendants used malicious/sadistic force, whether they filed any false rules violation reports or

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criminal charges against Plaintiff, and whether Plaintiff was severely or seriously injured when

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Defendant Torres fired a round from the 40mm launcher. (ECF No. 385, p. 2.) Adding these

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statements to Defendants’ list of disputed factual issues is superfluous and will not aid in the

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management of the case. Fed. R. Civ. P. 16(e) (court may modify the pretrial order “only to prevent

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manifest injustice”). The pretrial order already reflects that Plaintiff concedes those issues are disputed

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by the parties. Thus, Defendants’ request to modify the pretrial order is denied.
Next, Defendants object to the language in section VII of the pretrial order, regarding

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“Witnesses,” which states that the list of witnesses includes “rebuttal and impeachment witnesses” and

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that no other witnesses may be called at trial, unless the parties stipulate or upon a showing that the

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pretrial order should be modified to prevent manifest injustice. (ECF No. 368, p. 7.) Defendants argue

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that the need may arise to present a rebuttal or impeachment witness depending on the testimony

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elicited at trial, and that they should not be precluded from calling such witnesses during trial despite

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them not being disclosed in their pretrial statement, nor should they be required to have such witnesses

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present at the beginning of trial for Plaintiff to call in his case-in-chief. Therefore, Defendants seek to

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have the language that the witness list includes “rebuttal and impeachment witnesses” removed from

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the pretrial order. (Id.)
The Court denies Defendants’ request to modify the pretrial order, but offers clarification

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which will address the matters raised by Defendants. The Local Rules require the parties to list all

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prospective witnesses for trial, and only those witnesses so listed will be permitted to testify, except as

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otherwise provided in the pretrial order. Local Rule 281(b)(10). Thus, a witness whom a party knows

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that they intend to call to contradict an expected or anticipated portion of their opponent’s case must

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be listed in the party’s pretrial statement, and those witnesses not be allowed to testify if they are not

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listed in the Court’s pretrial order. The language in the pretrial order discussing “rebuttal and

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impeachment witnesses” refers to these types of witnesses.

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If a party calls a witness to testify regarding unexpected, surprise evidence or facts presented

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by the opposing party, the Court retains the broad latitude to allow such a witness to testify, depending

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on the circumstances. Also, if a witness will testify solely for impeachment purposes, the pretrial order

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will not preclude such testimony, since witnesses used solely for impeachment need not be disclosed

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prior to trial. See Fed. R. Civ. P. 26(a)(1)(A)(i) (no disclosure requirement if a witness is used solely

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for impeachment).
Finally, Defendants object to the pretrial order to the extent that it would preclude the use of

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rebuttal and impeachment exhibits, and they seek to add language to the pretrial order specifically

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allowing for the use of rebuttal and impeachment exhibits not listed in the pretrial order. (ECF No.

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385, pp. 3-4.) Although Defendants seek to add language regarding rebuttal and impeachment

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evidence, their arguments solely focus on impeachment evidence.
Defendants’ request is denied, but the Court again offers clarification to address the issues

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raised. The Local Rules require the parties to provide a list of all exhibits they expect to offer at trial,

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and excludes exhibits not so listed. Local Rule 281(b)(11). Whether certain evidence should be

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allowed into evidence to rebut new, surprise facts brought out by the opposing party will be addressed

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by the Court at the time such an issue is presented, under the relevant circumstances. Exhibits offered

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at trial solely for impeachment purposes do not need to be identified in the pretrial order or disclosed

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prior to trial, and therefore the fact that such exhibits are not listed in the pretrial order will not

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preclude their use. Fed. R. Civ. P. 26(a)(3)(A) (exempting evidence to be used solely for impeachment

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from pretrial disclosure requirement); see also Fresno Rock Taco, LLC v. National Sur. Corp., No.

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1:11-cv-00845-SKO, 2013 WL 3803911, *4 (E.D. Cal. Jul. 19, 2013) (discussing exemption from

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disclosure of impeachment-only evidence). The Court will consider if evidence that has impeachment

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or rebuttal value was subject to mandatory disclosure or was requested in discovery, and a litigant who

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fails to identify such evidence faces having it excluded at trial, or other ramifications.

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For the reasons explained above, it is HEREBY ORDERED that Defendants’ objections to the
Court’s December 18, 2015 pretrial order in this matter (ECF No. 385) are OVERRULED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 12, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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