Clarke v. Upton, et al

Filing 127

SCHEDULING CONFERENCE ORDER, signed by Judge Oliver W. Wanger on 7/29/2010. ( Discovery Cutt-Off: 6/24/2011, Non-Dispositive Motion Filing Deadline: 7/11/2011, Non-Dispositive Motion Hearing set 8/12/2011 at 9:00 AM in Courtroom 7 (SMS) before Ma gistrate Judge Sandra M. Snyder, Dispositive Motion Filing Deadline: 7/25/2011, Dispositive Motion Hearing set for 8/29/2011 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Settlement Conference set for 6/29/2011 at 10:30 AM in Courtr oom 7 (SMS) before Magistrate Judge Sandra M. Snyder, Pretrial Conference set for 10/3/2011 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Jury Trial set for 11/1/2011 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.) (Gaumnitz, R)

Clarke v. Upton, et al

Doc. 127

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 II. I. Date of Scheduling Conference. July 28, 2010. Appearances Of Counsel. Stanley Bradford Clarke, Plaintiff, appeared in pro se. Emerson, Corey, Sorensen, Church & Libke by Rayma Church, 1 Trial Date: 11/1/11 9:00 Ctrm. 3 (JT-5 days) Settlement Conference Date: 6/29/11 10:30 Ctrm. 7 Pre-Trial Conference Date: 10/3/11 11:00 Ctrm. 3 v. SANDRA UPTON; AMPARO WILLIAMS; DEPARTMENT OF SOCIAL SERVICES; and COUNTY OF MADERA, Defendants. STANLEY BRADFORD CLARKE, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:07-cv-0888 OWW SMS SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 6/24/11 Non-Dispositive Motion Filing Deadline: 7/11/11 Non-Dispositive Motion Hearing Date: 8/12/11 9:00 Ctrm. 7 Dispositive Motion Filing Deadline: 7/25/11 Dispositive Motion Hearing Date: 8/29/11 10:00 Ctrm. 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

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Esq., appeared on behalf of Defendants. III. Summary of Pleadings. Plaintiff's Factual Contentions. 1. Plaintiff contends that on September 16, 2005, at the

hearing of an ex parte application on a family law matter in the Madera County Superior Court, Defendant Sandra Upton failed to disclose exculpatory evidence which would have indicated that the Plaintiff did not exchange his child with his ex-wife, only upon being instructed by law enforcement officers not to do so. Plaintiff contends that the failure to disclose this evidence resulted in Plaintiff being deprived of custody and visitation rights relative to his minor son. Plaintiff contends that Sandra

Upton was acting as an employee of the County of Madera, Department of Social Services, at the time of the hearing. 2. Plaintiff contends that Sandra Upton conspired with

Amparo Williams, another employee of the Department of Social Services, and others, to deprive the Plaintiff of his right to be with his son, in part due to Plaintiff's ancestry and his gender. Plaintiff's Legal Contentions. 3. Plaintiff contends that the failure to disclose

exculpatory evidence violated Plaintiff's civil rights and that he is entitled to recovery from the Defendants under § 1983. also contends that the conspiracy is actionable under § 1985. Plaintiff seeks recovery upon a state law theory of the infliction of emotional distress. Plaintiff seeks recovery He

against the County of Madera and the Department of Social Services because of policies and procedures concerning the use of trickery, duress, fabrication and/or false testimony of evidence, 2

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and the failure to disclose exculpatory evidence.

Also Plaintiff

contends that there was a failure to adequately train County employees relative to certain Constitutional rights. Relief Sought by Plaintiff. 4. Plaintiff is seeking general damages according to the

proof, special damages according to the proof, including medical expenses, compensatory damages for violation of Plaintiff's civil rights, and costs of suit. Defendants' Factual Contentions. 5. Defendants contend there was a factual controversy

relative to the circumstances preceding the ex parte application. Defendants contend the hearing was requested by the son's attorney, and other ex parte relief was requested by the son's mother. At the time of the hearing, an order was in force which

required the child to be exchanged at pre-arranged times and without incident. The Superior Court had already found that both

the Plaintiff and the mother were not acting in the best interests of the child, and had declared the child to be a ward of the court. The father had been found to have been overly

suspicious of the mother and to have been manipulating his son against the mother. 6. Defendants contend that Plaintiff had failed to comply While Plaintiff

with the exchange order on several occasions.

contends that police officers told him not to exchange his child with mom, police officers subsequently questioned son and determined that no abuse had occurred and that there was no justification for the scheduled exchange not to take place. Defendants contend that the Plaintiff was repeating behavior in 3

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which he was falsely accusing the mother, or exaggerating the circumstances. Plaintiff did not at any time explain to any

employee of the Department of Social Services why he would not be exchanging the child per the court's order. 7. Defendants contend that Plaintiff's counsel, at the

time, requested an evidentiary hearing for a later date, a month after the hearing of the ex parte application. 8. On state law claims, Plaintiff did not timely file his

complaint after having been given notice of the rejection of his claim. Defendants' Legal Contentions. 9. Defendants contend that they have not violated

Plaintiff's civil rights and that they are not liable for decisions of the judge of the Superior Court. The Plaintiff

himself, or his previous attorney, are responsible for the outcome of the previous litigation. 10. Defendants also contend that, relative to the civil

rights claims, either the absolute or qualified privilege applies. 11. As to the state law claims, Plaintiff has failed to

comply with the California Government Claims Act and cannot seek recovery against the Defendants. Otherwise, he cannot show that

the Defendants engaged in extreme or outrageous conduct, or would have owed a duty to Plaintiff to prevent him suffering emotional distress. IV. Orders Re Amendments To Pleadings. 1. The Court, with Plaintiff's consent, has dismissed

without prejudice, the Department of Social Services, as that is 4

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not a public entity that can be liable under the circumstances of this case. 2. The parties do not anticipate amending the pleadings at

this time, except the Plaintiff has agreed that Madera Department of Social Services is dismissed without prejudice. 3. The Defendants shall file their answer to the most

recent amended complaint on or before January 31, 2011. V. Factual Summary. A. Admitted Facts Which Are Deemed Proven Without Further

Proceedings. 1. The parties do not dispute that Defendants Sandra

Upton and Amparo Williams were the employees of the County of Madera and were acting in the course and scope of employment at the time of the pertinent events. 2. It is not disputed that Plaintiff was the father

of the child identified in the pleadings. 3. It is not disputed that on or about November 24, The judge

2004, the Kern County Superior Court held a hearing.

ordered supervised visitation for the mother and that she would not sleep in the same bed as the minor. The court ordered the

minor child be evaluated by Jay Fisher, Ph.D. 4. It is not disputed that in January of 2005, Dr.

Jones, a pediatrician, noted signs of physical abuse and injuries on the minor child's body and that Dr. Jones' notes relate that the child's mother had inflicted these injuries when hitting the child with a wooden spoon. On January 10, 2005, the minor child

was placed in the temporary placement and care of the CPS by court order, and that the child was later placed in foster care. 5

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5.

A CSART interview of the minor child was completed

on early 2005, with the Deputy District Attorney present, as well as a Madera Police Department Detective, and a District Attorney's Office investigator. The interview was conducted

without Plaintiff or any relative present. 6. On February 21, 2005, Dr. Fisher, a child

psychologist, issued a report of a psychological examination. The report indicated that the minor was very intelligent. Dr.

Fisher concluded that the mother appeared to have hurt her son and placed him in a position where he was injured and/or physically abused. Dr. Fisher recommended that the minor be Dr. Fisher recommended that

returned to the custody of his dad.

the mother should have supervised visits with the child, obtain psychotherapy for her and her child, and take an anger management course. 7. A dependency hearing was held on April 11, 2005,

which was contested. 8. On or about June 10, 2005, Judge Thomas Bender Judge Bender found

reached a decision in the dependency case.

that there was one incident of physical abuse by the mother. Judge Bender ordered the minor to become a dependent of the court. The parents would have alternating visitation consisting

of custodial time with both parents. 9. Dr. Napolitano made a report to Pam Ogella at

Madera CPS on August 23, 2005. 10. Plaintiff arrived at the Madera City Police

Department on September 15, 2005, with his minor child and met with Sgt. Wiles and Defendant Upton. 6

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11.

Plaintiff later complained to the supervisors and

management of the Department of Social Services and asked that Defendant Upton be removed from the case. 12. Plaintiff retained joint physical and legal

custody of the minor on September 18, 2007. B. Contested Facts. 1. The child could not be given over to the custody

of the Plaintiff until the court conducted a dependency hearing. 2. On January 10, 2005, the minor child was placed in It is disputed as to the

temporary placement in care of CPS. date the court order issued. foster care. 3.

The child was later placed in

Whether Dr. Susan Napolitano reported to Defendant

Upton, the family maintenance service worker, representations that the minor had made to Dr. Napolitano. referred to CPS to make a report. 4. Plaintiff and his attorney attended the ex parte It is disputed whether Defendant Dr. Napolitano was

hearing on September 16, 2005.

Upton arrived late to the dependency case hearing and was only present for part of the hearing on September 16, 2005. Dependency Ruling. 5. The underlying dependency matter was fully tried The Court issued its The

in the Madera County Superior Court.

decision on the dispositional hearing on June 10, 2005.

Reporter's transcript indicates that the court, Hon. Judge Bender presiding, considered the Department's evidence, the jurisdictional hearing report, the addendum report, the dispositional hearing report, the delivered service logs, as well 7

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as the mother's evidence, and the father's evidence.

The court

considered Mr. Clark's testimony, the testimony of the mother, the social worker testimony, and numerous psychologists. The

court watched tapes of the child interacting with the parents. 6. In a very personal decision, Judge Bender

expressed deep concern for the interest of the minor, and found both his parents were acting against the boy's interests. court took jurisdiction over the case. The

It found that Stanley

Bradford Clarke had credibility problems, as did the mother, and others involved. 7. The court found that there was no sexual abuse.

The court found that Mr. Clarke had abused the child's mother in front of the son, and had made derogatory statements about her in front of the minor child. The court determined that Mr. Clarke

was constantly interrogating his son, and coaching him and rehearsing with him what to say about the mother. Mr. Clarke was

found to be forum shopping between Kern County and Madera County. 8. Judge Bender opined that both the mother and the

father had to stop blaming the other person for the child's sake. The minor child was made a dependent of the court. The parents The minor

were ordered to make the exchanges easy on their son.

child was to be under some degree of supervision by Child Welfare Services. Judge Bender specified again that he did not want any

problems at the exchanges. Failure to Exchange. 9. Plaintiff was scheduled to exchange the child with

the mother on September 14, 2005, in accordance with the court's orders. Plaintiff did not do so. 8 No explanation was given by

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Plaintiff to Defendants, before or on the day of the exchange, as to why Plaintiff did not comply with the scheduled exchange. Plaintiff contends that he was told by police officers not to exchange the child, after Plaintiff communicated his suspicion that the mother was sexually abusing the child. Request for Modification. 10. On September 15, 2005, the child's appointed

attorney, Ronald Nissila, moved the court to modify the June 10, 2005 order, for reasons that Stanley Bradford Clark was acting detrimentally to the child. On September 16, 2005, the court The matter was William Smith,

heard the matter with all parties present.

submitted by Mr. Nissila on the moving papers.

appearing for the County Counsel, submitted nothing more, but supported the requested relief. submitted the matter. 11. hearing. Mr. Clark's attorney requested an evidentiary The mother's attorney likewise

Plaintiff's attorney requested that the child be

returned to his father, that a SART interview be conducted, and that results be considered relative to a temporary custodial arrangement for the child. Plaintiff's attorney requested that

the child be taken to a doctor for further evaluation concerning the allegations of sexual abuse. Plaintiff's counsel reiterated The court denied the

his request for an evidentiary hearing.

request for a return of the child to the father, and for a second SART interview. The court also denied the request to have the

mother take the child to a doctor for further evaluation. 12. The court granted the application for modification

made pursuant to California Welfare and Institutions Code § 388, 9

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and removed the child from the care of his father.

Plaintiff

would have supervised visitation upon further psychological evaluation. The court specified that the order was temporary and

that an evidentiary hearing on the petition would be set. 13. Plaintiff's attorney requested "a minimum of a

couple of weeks..." to prepare for the hearing, which was then set for October 11, 2005. By that time, Mr. Clarke was no longer

represented by an attorney, and the matter was set out again. That date was continued three times, eventually to February 6, 2006. VI. Legal Issues. A. Uncontested. 1. U.S.C. § 1983. 2. 3. Venue is proper under 28 U.S.C. § 1391. The substantive law of the State of California Jurisdiction exists under 28 U.S.C. § 1331 and 42

governs the supplemental claims. 4. It is not contested that the minor's records and It may be

information should be protected from disclosure.

necessary to redact some matters from the public records; Plaintiff has not been represented by counsel through most of this litigation, and stated the name of the child in previously filed documents. B. Contested. 1. Defendants dispute that the Department of Social

Services may be sued as a party distinct from the County of Madera. 2. Defendants dispute that Plaintiff may name Doe 10

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Defendants in a complaint filed in federal court relative to federal claims. 3. The Defendants dispute liability as to each claim

in the complaint. 4. The Defendants dispute that there has been any

civil rights violations, and dispute the claims under state law. VII. Consent to Magistrate Judge Jurisdiction. 1. The parties have not consented to transfer the

case to the Magistrate Judge for all purposes, including trial. VIII. 1. Corporate Identification Statement. Any nongovernmental corporate party to any action in

this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with

its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information. IX. Discovery Plan and Cut-Off Date. 1. The Rule 26 disclosures shall be made simultaneously on

or before Monday, August 30, 2010. 2. The parties are ordered to complete all non-expert

discovery on or before April 4, 2011. 3. The parties are directed to disclose all expert Any rebuttal

witnesses, in writing, on or before April 25, 2011.

or supplemental expert disclosures will be made on or before May 25, 2011. The parties will comply with the provisions of Federal

Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written 11

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designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance

with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order. 4. The parties are ordered to complete all discovery,

including experts, on or before June 24, 2011. 5. The provisions of F. R. Civ. P. 26(b)(4) shall

apply to all discovery relating to experts and their opinions. Experts may be fully prepared to be examined on all subjects and opinions included in the designation. result in the imposition of sanctions. Further Discovery Limits. 6. There does not seem to be any reason to vary the limits If any issue Failure to comply will

provided by the Federal Rules of Civil Procedure.

develops at counsel's meet and confer and if they cannot resolve the matter between them, they will seek the court's assistance. Protective Order(s). 7. As the case progresses, it may be necessary for the

court to issue a protective order relative to the juvenile records of Plaintiff's son, which must remain private and confidential. The parties have already agreed previously to

preserve against such disclosure, and this does not appear to be a contested issue. Defense counsel will have with him copies of

the order concerning the release of the records concerning the underlying dependency proceedings. The Madera County Superior

Court ordered that the parties not disclose the matters contained 12

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in the record to any other person, save for presentation as evidence in this court proceeding. The Madera County Superior

Court ordered that the disclosed records should be filed confidentially. Proposals re timing, etc. 8. Defendants do not anticipate any issues relating to However, since

timing, sequencing, phasing, etc. of discovery.

Plaintiff is prosecuting this case pro se, there may be some difficulty. Foreign Discovery. 9. No foreign discovery is anticipated by the parties.

Video Depositions. 10. The parties may conduct videotaped depositions upon

written notice in a timely served deposition notice. Electronic Discovery. 11. It is not anticipated that electronic discovery in this It is possible that either Plaintiff or

case will be extensive.

Defendants, or Defendants' employees, used e-mail to communicate about the underlying matter in the Superior Court. The parties At the

will endeavor to locate such communications upon request.

time of this report, Defendants are unable to determine whether any of the communications may have been lost due to the normal retention policies and the passage of time, or due to any change of personnel or data storage or locating systems. Counsel will

confer regarding any searches of the pertinent computer systems when it becomes necessary. X. Pre-Trial Motion Schedule. 1. All Non-Dispositive Pre-Trial Motions, including any 13

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discovery motions, will be filed on or before July 11, 2011, and heard on August 12, 2011, at 9:00 a.m. before Magistrate Judge Sandra M. Snyder in Courtroom 7. 2. In scheduling such motions, the Magistrate

Judge may grant applications for an order shortening time pursuant to Local Rule 142(d). However, if counsel does not

obtain an order shortening time, the notice of motion must comply with Local Rule 251. 3. All Dispositive Pre-Trial Motions are to be

filed no later than July 25, 2011, and will be heard on August 29, 2011, at 10:00 a.m. before the Honorable Oliver W. Wanger, United States District Judge, in Courtroom 3, 7th Floor. In

scheduling such motions, counsel shall comply with Local Rule 230. XI. Pre-Trial Conference Date. 1. October 3, 2011, at 11:00 a.m. in Courtroom 3, 7th

Floor, before the Honorable Oliver W. Wanger, United States District Judge. 2. The parties are ordered to file a Joint Pre-

Trial Statement pursuant to Local Rule 281(a)(2). 3. Counsel's attention is directed to Rules 281

and 282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will insist upon strict

compliance with those rules. XII. Motions - Hard Copy. 1. The parties shall submit one (1) courtesy paper copy to Exhibits shall be marked with 14

the Court of any motions filed.

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protruding numbered or lettered tabs so that the Court can easily identify such exhibits. XIII. 1. Trial Date. November 1, 2011, at the hour of 9:00 a.m. in Courtroom

3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge. 2. 3. This is a jury trial. Counsels' Estimate Of Trial Time: a. 4. 5 days.

Counsels' attention is directed to Local Rules

of Practice for the Eastern District of California, Rule 285. XIV. Settlement Conference. 1. A Settlement Conference is scheduled for June 29, 2011,

at 10:30 a.m. in Courtroom 7 before the Honorable Sandra M. Snyder, United States Magistrate Judge. 2. Unless otherwise permitted in advance by the

Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms at the conference. 3. Permission for a party [not attorney] to attend

by telephone may be granted upon request, by letter, with a copy to the other parties, if the party [not attorney] lives and works outside the Eastern District of California, and attendance in person would constitute a hardship. If telephone attendance is

allowed, the party must be immediately available throughout the conference until excused regardless of time zone differences. Any other special arrangements desired in cases where settlement 15

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authority rests with a governing body, shall also be proposed in advance by letter copied to all other parties. 4. Confidential Settlement Conference Statement.

At least five (5) days prior to the Settlement Conference the parties shall submit, directly to the Magistrate Judge's chambers, a confidential settlement conference statement. The

statement should not be filed with the Clerk of the Court nor served on any other party. Each statement shall be clearly

marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon. Counsel are urged to

request the return of their statements if settlement is not achieved and if such a request is not made the Court will dispose of the statement. 5. The Confidential Settlement Conference

Statement shall include the following: a. case. b. A brief statement of the claims and A brief statement of the facts of the

defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute. c. d. A summary of the proceedings to date. An estimate of the cost and time to be

expended for further discovery, pre-trial and trial. e. f. The relief sought. The parties' position on settlement,

including present demands and offers and a history of past 16

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settlement discussions, offers and demands. XV. Request For Bifurcation, Appointment Of Special Master,

Or Other Techniques To Shorten Trial. 1. The issue of punitive damages, as to amount, if any,

shall be tried in a second phase in a continuous trial before the same jury. XVI. Related Matters Pending. 1. Plaintiff has appealed the underlying Superior Court

matter and has also filed an action against his attorney in the Superior Court matter. XVII. 1. Compliance With Federal Procedure. The Court requires compliance with the Federal

Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the

efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto. XVIII. 1. Effect Of This Order. The foregoing order represents the best

estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is If the parties determine at

specifically reserved for this case.

any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference. 2. Stipulations extending the deadlines contained 17

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herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested. 3. Failure to comply with this order may result in

the imposition of sanctions.

IT IS SO ORDERED. Dated: July 29, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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