Gornick v. California Department of Corrections, et al.
Filing
158
ORDER, signed by Chief Judge B. Lynn Winmill on 2/3/12: Plaintiff's Motion for Reconsideration for Appointment of Counsel 132 is DENIED; Plaintiff's Motion for Court-Appointed Investigator 133 is DENIED; Plaintiff's Motion for R econsideration for Full Disclosure 136 is GRANTED IN PART; Plaintiff's Motion for Status 153 is GRANTED as to new pretrial and trial schedule; Plaintiff's Request for Court Order 152 is GRANTED; The pretrial deadlines and trial date s et in the Court's Order of November 29, 2011 131 are VACATED; Disclosure of Witnesses ddl 4/30/12; Telephonic Pretrial Conference set for 5/22/12 at 3:00 p.m.; Pretrial Motions and Objections to Exhibits ddls 5/4/12, Responses 5/18/12; Request to Transport Prisoner Witnesses ddl 5/4/12; Trial set for 6/11/12 at 9:00 a.m., Courtroom #7, Fresno, CA; Exhibit Lists, Exhibits, Proposed Voir Dire, Proposed Jury Instructions, Trial Briefs ddl 5/4/12.(Hellings, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION
PAUL A. GORNICK SR.,
Case No. 1:06-CV-00296-BLW-LMB
Plaintiff,
ORDER
v.
CALIFORNIA DEPT. OF
CORRECTIONS, J. PAYNE,
DOCANTO, BRANDON, SGT. DICKS,
et al.,
Defendants.
Pending before the Court are several motions ripe for adjudication. Having
reviewed the record, the Court enters the following Order.
PENDING MOTIONS
1.
Motion for Reconsideration for Full Disclosure of Documentation (Dkt. 136)
The Court earlier ordered Defendants to provide Plaintiff with redacted copies of
records of any incidents reflecting any Defendant’s alleged or actual involvement in
alleged or actual excessive force incidents with any inmates. (Order of November 2,
2010, Dkt. 92.)The Court limited disclosure to incidents that occurred within two years of
ORDER- 1
Plaintiff’s alleged incident (between December 2002 and the date of the incident on
December 8, 2004). (Id.) Plaintiff argues that all incidents, no matter how far back in
time, from the date Defendants were first hired, are within the broad scope of discovery.
One of the Court’s concerns was that requiring Defendants to search out and find such
incidents would be unduly burdensome. To balance the need for the documents with the
difficulty in searching for them, the Court will grant the motion for reconsideration in
part. If any such records are found in Defendants’ personnel files, Defendants shall
produce them to Plaintiff in redacted form. However, Defendants shall not be required to
search through thousands of inmate complaints to find any such documents, because it
would be too burdensome. If no relevant pre-December 2002 records are found in the
personnel files, then Defendants shall so state in their notice of compliance.
2.
Motion for 90-Day Extension of Time (Dkt. 134)
Plaintiff seeks an additional 90 days for trial preparation, which would move the
trial from March to June. (Dkt. 134.) Defendants do not oppose moving the trial (Dkt.
135.) Good cause appearing, the Court will vacate the current pretrial and trial schedule
and re-set those dates, as provided below.
3.
Plaintiff’s Motion to Reconsider Appointment of Counsel and Motion for
Court Order (Dkts. 132, 152)
For the reasons set forth in the Court’s previous Orders, the Motion to Reconsider
Appointment of Counsel will be denied. (Dkt. 132.) Plaintiff’s litigation abilities far
exceed those of most inmates. In Lewis v. Casey, 518 U.S. 343 (1996), the Court
ORDER- 2
explained the limitations of Bounds v. Smith, 430 U.S. 817, 828 (1977), providing for
inmate access to the courts. There, the Court emphasized that “Bounds did not create an
abstract, freestanding right to a law library or legal assistance.” 518 U.S. at 351.
The Casey decision limits the application of Bounds to initial filings of prisoner
cases involving their convictions or conditions of confinement. Particularly, the Court
stated:
It must be acknowledged that several statements in Bounds went beyond the
right of access recognized in the earlier cases on which it relied, which was
a right to bring to court a grievance that the inmate wishes to present. These
statements appear to suggest that the State must enable the prisoner to
discover grievances, and to litigate effectively once in court. These
elaborations upon the right of access to the court have no antecedent in our
pre-Bounds cases, and we now disclaim them.”
518 U.S. at 354 (emphasis added).
Plaintiff’s inability to more fully litigate his claims are “incidental (and perfectly
constitutional) consequences of conviction and incarceration.” Id. at 355. It appears that
the prison has in place a set of policies and procedures to help inmates investigate their
cases within the confines of the security and privacy protections inherently required in
prison administration. Plaintiff’s concerns in his “Motion for Court Order,” is that prison
officials have frustrated Plaintiff’s case, hindered his access to the court, and failed to
comply with their own rules and regulations. (Dkt. 152, p. 1.)
While the United States Court of Appeals for the Ninth Circuit has confirmed that
prison officials have no affirmative duty to help an inmate litigate his claims beyond the
pleadings stage, that Court has clarified that the law prohibits prison officials from
ORDER- 3
actively interfering with an inmate’s litigation during the pendency of the case. Silva v.
Vittorio, 598 F.3d 1090 (9th Cir. 2011). In other words, “[t]his right does not require
prison officials to provide affirmative assistance in the preparation of legal papers, but
rather forbids states from ‘erect[ing] barriers that impede the right of access of
incarcerated persons.’” Id. at 1102 (citation omitted).
Here, the Court will provide Plaintiff with an extension of time for the pretrial
deadlines and the trial date in order to accommodate his need to prepare for trial pro se,
and the court will require Defendants’ counsel to call or meet with prison officials within
21 days after entry of this Order to clarify the process available to Plaintiff (and the
particular prison officials who will be involved in the process) to enable Plaintiff to
interview his witnesses in writing or in person, in accordance with what prison
procedures may allow.1 To facilitate the call or the meeting, Defendants’ counsel shall
provide prison officials in advance of the meeting the full contents of Plaintiff’s Motion
for Court Oder and exhibits addressing his difficulties with preparing for trial. (Dkt.152).
After the call or meeting, Defendants shall file a notice with the Court indicating how that
process will proceed in this case, including which prison officials will be involved in
facilitating the process.
Plaintiff is advised that witnesses are not required to cooperate before trial. The
procedures simply will provide Plaintiff with a manner in which to make a contact with
1
If interviews are permitted, then any interviews with current Department of Correction employees
can be held with or without the employee’s attorney present, at the employee’s choice.
ORDER- 4
them. If witnesses hold information relevant to the claims but refuse to cooperate, then
the witnesses likely can be subpoenaed to testify at trial.
3.
Motion for Court-Appointed Investigator (Dkt. 133)
Plaintiff seeks appointment of an investigator to help him prepare for trial, and do
those things inmates cannot do themselves. (Dkt. 133.) Plaintiff’s request must be denied,
as there is no legal basis to support such a request and no public monies available to fund
such a request. The foregoing procedures should help Plaintiff adequately prepare for
trial.
ORDER
IT IS ORDERED:
1.
Plaintiff’s Motion for Reconsideration for Appointment of Counsel (Dkt.
132) is DENIED.
2.
Plaintiff’s Motion for Court-Appointed Investigator (Dkt. 133) is DENIED.
3.
Plaintiff’s Motion for Reconsideration for Full Disclosure (Dkt. 136) is
GRANTED in part, as set forth herein above. If Defendants have any
further documentation within the category set forth above, they shall
provide it to Plaintiff in a redacted fashion, within 21 days after entry of
this Order, and, in any event, a “notice of compliance” should be filed with
the Court.
4.
Plaintiff’s Motion for Status (Dkt. 153) is GRANTED to the extent that this
Order provides a new pretrial and trial schedule.
ORDER- 5
5.
Plaintiff’s Request for Court Order (Dkt. 152) is GRANTED to the extent
set forth above. Defendants’ counsel shall meet by telephone or in person
with prison officials regarding the procedures Plaintiff is to use to obtain
witness information within 21 days after entry of this Order, and
Defendants’ notice of compliance shall be filed within 10 days after
counsel has determined the procedures for Plaintiff to follow.
6.
The pretrial deadlines and trial date set in the Court’s Order of November
29, 2011 (Dkt. 131) are VACATED.
IT IS FURTHER ORDERED that the following pretrial and trial schedule shall
govern the remainder of this case.
1.
Disclosure of Witnesses: Both parties shall disclose all lay and expert
witnesses intended to be called at trial and a summary of the substance of
their testimony no later than April 30, 2012.
2.
Pretrial Conference. A telephonic pretrial conference shall be held on May
22, 2012, at 3:00 p.m. Mountain Time. Counsel for Defendants shall
initiate the conference call, using a conference call operator, to the Court at
(208) 334-9145.
3.
Pretrial Motions and Objections to Exhibits. All pretrial motions, including
motions in limine, and all objections to exhibits shall be filed no later than
May 4, 2012. Responses shall be filed by May 18, 2012.
5.
ORDER- 6
Requests to Transport Prisoner Witnesses. All requests for the
transportation of prisoner witnesses to trial shall be made no later than May
4, 2012. As noted above, the substance of each witness’s testimony and the
location of the witness must be disclosed, so that the Court can determine
whether the witnesses should be transported.
6.
Trial. The Court shall conduct a 3-day jury trial beginning June 11, 2012,
beginning at 9:00 a.m., at the United States District Court for the Eastern
District of California, 2500 Tulare Street, Courtroom #7, Fresno,
California 93721.
7.
Exhibit Lists, Exhibits, Proposed Voir Dire, Proposed Jury Instructions,
Trial Briefs: All exhibit lists, proposed voir dire, proposed jury
instructions, and trial briefs shall be filed with the Court no later than May
4, 2012. The parties shall exchange all trial exhibits on May 4, 2012, but
shall not provide them to the Court until the day of trial. Counsel shall
provide the Court with one set of original pre-marked exhibits, and one
copy. The exhibit lists shall be prepared on the form available at
“www.id.uscourts.gov/forms/district/exhibit lists: Exhibit List for Judge
Winmill” (a copy will be provided to Plaintiff by mail), with sufficient
copies for the Judge, the Deputy Clerk, and the Law Clerk. Exhibit
numbers 1 through 999 shall be reserved for joint exhibits; exhibit
numbers 1000 through 1999 shall be reserved for plaintiff’s exhibits;
ORDER- 7
exhibit numbers 2000 through 2999 shall be reserved for the first
defendant listed on the caption; exhibit numbers 3000 through 3999 shall
be reserved for the second defendant listed on the caption; and so on.
Counsel shall review their exhibits, determine any duplication, and jointly
mark and stipulate to the admission of those exhibits that both sides intend
to offer and rely upon. The parties are directed to Eastern District Local
Rule 162(a) and Local Rule 163(a) for procedures regarding proposed voir
dire and proposed jury instructions, respectively. The dates set forth herein
for the filing of proposed voir dire and proposed jury instructions,
however, supersede the deadlines set forth in the Local Rules.
8.
Trial Procedures:
a.
The Court will generally control voir dire, and counsel will be
limited to 20-30 minutes. Counsel are cautioned not to repeat
questions already asked by the Court or other counsel and are
advised that the Court will not permit voir dire which appears
intended to influence the jury rather than explore appropriate
concerns with a juror’s ability to be fair and impartial.
b.
Counsel shall exercise good faith in attempting to reach a
stipulation on undisputed facts and admission of exhibits.
c.
During trial, the jury will be in the box hearing testimony the entire
trial day between 9:00 a.m and 5:00 p.m., except for the standard
ORDER- 8
fifteen minute morning and afternoon recesses, and the lunch
recess. During the time the jury is in the jury box, no argument,
beyond on-sentence evidentiary objections, shall be allowed to
interrupt the flow of testimony. If counsel have matters that need to
be resolved outside the presence of the jury, they are to advise the
Court and counsel prior to the issue arising during trial so that it can
be heard during a recess, or before or after the jury convenes.
Where the need for such a hearing cannot be anticipated, the Court
will direct the examining counsel to avoid the objectionable subject
and continue on a different line of questioning so that the objection
can be argued and resolved at the next recess. To avoid late-night
sessions, counsel are advised to bring up all anticipated evidentiary
questions in their trial briefs or by written pretrial objections or
limine motions, as noted above.
d.
Counsel shall have enough witnesses ready to ensure a full day of
testimony. If witnesses are unavoidable delayed, counsel shall
promptly notify the court and opposing counsel.
9.
Prior Compliance with Pretrial Order. If the parties have already complied
with exchanges of lists or documents under the prior pretrial order, then
their remaining duty to is provide supplementation only.
ORDER- 9
DATED: February 3, 2012
Honorable B. Lynn Winmill
Chief U. S. District Judge
ORDER- 10
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