Perez v. Dill et al

Filing 118

ORDER Imposing Sanctions and Requiring Filing and Service of List of Proposed Trial Exhibits, signed by Magistrate Judge Barbara A. McAuliffe on 11/18/15: November 25, 2015 Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAUL BARRIOS PEREZ,

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Plaintiff,

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v.
DILL, et al.,

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Defendants.

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Case No.: 1:07-cv-01794-BAM (PC)
ORDER IMPOSING SANCTIONS AND
REQUIRING FILING AND SERVICE OF LIST
OF PROPOSED TRIAL EXHIBITS
NOVEMBER 25, 2015 DEADLINE

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Plaintiff Saul Barrios Perez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to the

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jurisdiction of the Magistrate Judge. (ECF No. 111.)

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On November 3, 2015, this Court issued an order to show cause why this action should not be

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dismissed for Plaintiff’s failure to comply with the court’s scheduling order requiring him to file a

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pretrial statement. (ECF No. 115.) On November 16, 2015, Plaintiff filed a response to the order to

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show cause, titled “Motion Requesting a Late Extension of Time,” dated October 19, 2015.1 (ECF No.

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116.) The Court also held a hearing on the order to show cause on November 18, 2015.

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The Court noted at the hearing on the order to show cause that based on when Plaintiff’s motion was
dated, it appeared to take nearly a month before the Court received it. Plaintiff provided no explanation for the
late receipt of his filing.
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In response to the order to show cause, Plaintiff explained that he had another civil litigation

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matter with a pending summary judgment opposition deadline around the same time his pretrial

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statement in this case was due. (ECF No. 115.) This does not show good cause for Plaintiff’s failure to

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file a pretrial statement. The scheduling order setting the deadline for filing of pretrial statements in

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this case was issued over two months ago, on August 31, 2015. (ECF No. 108.) That order specifically

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warned that the “failure to file pretrial statements as required by this order may result in the imposition

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of appropriate sanctions, which may include dismissal of the action or entry of default.” (Id. at 5.)

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After this matter was reassigned to the undersigned Magistrate Judge for all purposes, an amended

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scheduling order was issued October 7, 2015, confirming that the due date for pretrial statements

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remained the same. (ECF No. 112.) Thus, having been warned about the possibility of sanctions and

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repeatedly informed and reminded of the pending deadline in this matter, Plaintiff should not have

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ignored his pretrial order filing obligation. The fact that he was also busy with other litigation does not

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excuse his non-compliance.

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During the hearing, Plaintiff also explained that from time to time he has been on lockdown or

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otherwise without access to law library services and his legal materials. He was not specific regarding

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how any of these matters impacted his ability to file his pretrial statement. Moreover, Plaintiff stated in

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his November 16, 2015 filing that he had been able to work on his opposition for summary judgment

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in his other case for “close to three months,” (ECF No. 116, p. 3), had in fact written “not one but two

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oppositions” in that case, (Id. at 2), and was able to make a timely request for an extension of a

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deadline in that matter, (Id. at 4-5). This does not support any finding that he was justified in not

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complying with this Court’s scheduling order or in being incommunicative with this Court.

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Under Rule 16(f), the Court has authority to sanction a party for the failure to obey a

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scheduling or other pretrial order. Fed. R. Civ. P. 16(f)(1)(C). “[V]iolations of Rule 16 are neither

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technical nor trivial, but involve a ‘matter most critical to the court itself: management of its docket’

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and the avoidance of unnecessary delays in the administration of its cases.” Martin Family Trust v.

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Heco/Nostalgia Enterprises Co., 186 F.R.D. 601, 602 (E.D. Cal. 1999) (quoting Matter of Baker, 744

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F.2d 1438, 1441 (10th. Cir. 1984)). “Accordingly, it is the duty of the trial court, ‘within the spirit of

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its total powers, including Rule 16, to impose sanctions . . . in a manner designed to solve the
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management problem.’” Id. (quoting Baker, 744 F.2d at 1442). “[I]n a proper case, a trial court may

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exclude a party’s witnesses as a sanction for failure to comply with a pretrial order.” Ortega v.

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O’Connor, 50 F.3d 778, 779 (9th Cir. 1995).

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Local Rule 281(b), setting for the matters to be addressed in the pretrial statement, required

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Plaintiff to list his prospective trial witnesses, and noted that “[o]nly witnesses so listed will be

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permitted to testify at the trial . . . .” Local Rule 182(b)(10). Since Plaintiff has, at the time of this

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order, filed no pretrial statement, the Court and Defendants are not informed of what prospective

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witnesses, if any, Plaintiff intended to call at trial. In addition, the scheduling order in this case

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required Plaintiff to file along with his pretrial statement any motions for seeking the Court’s

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assistance in obtaining any witnesses who are incarcerated or who do not agree to voluntarily testify.

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(ECF No. 112, p. 2.) Plaintiff did not meet those deadlines either. Plaintiff’s non-compliance is not

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harmless. It prejudices the Defendants by depriving them of the opportunity to develop any timely

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opposition(s) to the proposed witness(es) and to prepare for the cross-examination of such witnesses at

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trial. Plaintiff’s non-compliance also overtaxes the Court’s already limited judicial resources by giving

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the Court insufficient time to rule on the appropriateness of Plaintiff’s proposed witnesses and order

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their presence for trial, if necessary. Thus, due to Plaintiff’s failure to timely disclose or identify

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potential witnesses through any motions, notifications, or through his pretrial statement, he is barred

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from presenting any witnesses, other than himself (or defendants), at trial.

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Plaintiff was also required to provide a list of documents or other exhibits he expected to offer

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at trial in his pretrial statement. Local Rule 281(b)(11). Copies of exhibits themselves are to be

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provided at a later date, but the list enables Defendants to prepare any motions in limine or other

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objections for trial. The Court finds that it is appropriate under these circumstances to allow Plaintiff

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to file and serve on Defendants his list of proposed exhibits by November 25, 2015. Only exhibits on

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that timely filed and served list will be permitted to be offered by Plaintiff at trial, except as may be

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otherwise provided in the pretrial order.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff is BARRED from presenting any witnesses at trial in this matter, other than

himself or defendants; and
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Plaintiff shall file and serve on Defendants his list of proposed exhibits on or before

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November 25, 2015. Only exhibits on that timely filed and served list will be permitted to be offered

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by Plaintiff at trial, except as may be otherwise provided in the pretrial order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 18, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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