Monclova-Chavez v. McEachern et al

Filing 148

PRETRIAL ORDER signed by District Judge Anthony W. Ishii on 06/18/2013. Motions In Limine Hearing set for 7/22/2013 at 02:00 PM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii; Jury Trial set for 7/30/2013 at 08:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAXIMILIAN MONCLOVA-CHAVEZ, 12 Plaintiff, 13 14 v. ERIC McEACHERN, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) Case No.: 1:08-cv-00076-AWI-BAM PRETRIAL ORDER Motions In Limine Hearing: July 22, 2013, 2:00 p.m. Courtroom 2 Trial: July 30, 2013, 8:30 a.m. Courtroom 2 17 18 This action proceeds on Plaintiff Maximilian Monclova-Chavez’s complaint filed on January 19 15, 2008. Plaintiff Maximilian Monclova-Chavez is a federal prisoner proceeding in this civil rights 20 action filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 21 U.S. 388, 91 S.Ct. 1999 (1971) for two separate incidents of excessive force in violation of the Eighth 22 Amendment. The court severed the trial of Defendants Miller, White and McEachern from the trial 23 against Defendant Tincher. This pretrial order is limited to the trial involving Defendants Miller and 24 White.1 25 The legal issues for the instant trial are the following: (1) whether Defendants Miller and 26 White violated Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment 27 28 1 Default was entered against Defendant McEachern on December 8, 2010. 1 1 stemming from an April 7, 2007 incident during which Plaintiff was allegedly assaulted in a holding 2 room by Defendants Miller and White and Eric McEachern; and (2) whether Defendants Miller and 3 White and Eric McEachern conspired to violate Plaintiff’s civil rights in the April 7, 20007 incident. 4 Trial in this action is set for July 30, 2013. The parties have estimated the trial will take 5 between four and five days. Counsel were advised that because of scheduling issues, the trial cannot 6 extend beyond the four to five day time estimate. 7 8 9 10 The parties have submitted a joint pretrial statement. Having reviewed the statement and the remainder of the file, the court now issues the Pretrial Order. I. Jurisdiction and Venue The court has subject matter jurisdiction over this federal civil rights action. 28 U.S.C. § 1331. 11 Venue is proper because Defendant White and Miller reside in this judicial district and the conduct 12 allegedly occurred in this judicial district. 13 II. Jury Trial 14 Plaintiff timely requested trial by jury. This action shall be tried by a jury of eight. 15 III. Facts 16 A. Undisputed Facts 17 1. In April and May 2007, Plaintiff, born October 14, 1966, was a prisoner in federal 18 custody at the United States Penitentiary in Atwater, California (“USP-Atwater”). 19 2. All Defendants acted under color of federal law. 20 3. During that period, Defendants White and Miller and Eric McEachern all held the 21 22 position of Lieutenant at USP-Atwater. 4. On April 7, 2007, Defendant White was the Operational Lieutenant. In that 23 position, he was the supervisor in charge of the shift of correctional officers for the 24 period 4:00 p.m.-12:00 midnight. 25 5. During the period 4:00 p.m.-12:00 midnight on April 7, 2007, Defendants White 26 and Miller and Eric McEachern were the three highest ranking officers on-site at 27 the facility. 28 2 1 2 6. On April 7, 2007, Plaintiff assaulted Correctional Officer Matthew Tincher by throwing human waste on him. 3 7. On that day, a Saturday, Plaintiff was confined in the Special Management Unit 4 (“SHU”) at USP-Atwater awaiting a disciplinary hearing on a charge that he had 5 assaulted Correctional Officer Matthew Tincher. 6 8. On April 7, 2007, Defendants White and Miller and Eric McEachern met to discuss 7 unusual events occurring during the prior shift as required as part of a shift change. 8 During this meeting, Defendants White and Miller and Eric McEachern discussed 9 Plaintiff’s assault on Officer Tincher. 10 9. On that day, Plaintiff was moved to the R & D Unit at USP-Atwater. The R & D 11 Unit at USP-Atwater is used to hold prisoners in the receiving or departure process. 12 The Unit is ordinarily occupied by prisoners, and staffed, only Monday through 13 Friday. 14 10. Plaintiff was confined in a cell in the R & D Unit. Pursuant to the Warden’s order, 15 correctional staff placed Plaintiff in handcuffs, leg irons, a belly chain and a “black 16 box.” Because of these restraints, Plaintiff could not raise his hands higher than his 17 mouth and could not run or take a full step. 18 11. Plaintiff was uninjured at the time he was placed in the cell in the R & D Unit. 19 12. At the time that Plaintiff was moved to the R & D Unit, there were no other 20 prisoners in the Unit. There were no video cameras that provided coverage of 21 events within the cells in the unit. 22 13. At approximately 4:00 p.m. on April 7, 2007, Defendants White and Miller and 23 Eric McEachern went to the R & D Unit. Once at the R & D Unit, Defendant 24 White told Officer Gray to report to the SHU. 25 26 27 28 14. After Officer Gray left, Defendants White and Miller and Eric McEachern were the only custody staff in the R & D Unit. 15. When Eric McEachern entered the cell where Plaintiff was confined, Mr. McEachern was carrying a flashlight on his equipment belt. 3 1 16. At no time when Eric McEachern was in the cell with Plaintiff was there any 2 justification to use force against Plaintiff under applicable Bureau of Prisons policy 3 or the Eighth Amendment. Defendants White and Miller saw Eric McEachern 4 strike Plaintiff. 5 6 7 17. While Eric McEachern was in the cell with Plaintiff, he struck Plaintiff twice with his flashlight. 18. As a result of the two flashlight blows from Eric McEachern, Plaintiff suffered two 8 scalp wounds that resulted in blood loss. The scalp wounds involved roughly 9 parallel cuts on the top of Plaintiff’s head. 10 19. After examination by a physician’s assistant at USP-Atwater, Plaintiff was 11 transported to the emergency room at Mercy Hospital in Merced, California, where 12 he was examined and treated for several hours. While at Mercy Hospital, medical 13 personnel closed Plaintiff’s head wounds. Correctional staff returned Plaintiff to 14 USP-Atwater at approximately 9:00 p.m. on April 7, 2007. 15 20. Defendant Miller signed the inmate observation form for 4:00 p.m. April 7, 2007, 16 regarding Plaintiff. In that form, Defendant Miller claimed that Plaintiff had caused 17 his injuries by banging his head into the wall. 18 21. During the evening of April 7, 2007, a video recording was made showing 19 Plaintiff’s injuries. Defendant White narrated the soundtrack for that video 20 recording. In that narration, Defendant White claimed that Plaintiff had caused his 21 own injuries by banging his head into the wall. 22 22. While Eric McEachern was serving a second shift at USP-Atwater in the early 23 morning hours of April 7, 2007, Defendant Miller telephoned him to find out 24 whether Mr. McEachern was going ahead to file a report claiming that Plaintiff had 25 caused his own injuries by running his head into the wall of the cell. 26 23. After the incident in which Eric McEachern struck Plaintiff with his flashlight, 27 Defendants White and Miller and Eric McEachern filed official reports stating that 28 Plaintiff had injured himself by running his head into the wall. 4 1 24. Defendants White and Miller did not correct those false reports until May 24, 2007, 2 in the course of a meeting with federal investigators regarding Plaintiff’s report that 3 he had been assaulted by each of the Defendants. At that point, Defendants White 4 and Miller swore under oath that Eric McEachern twice struck Plaintiff in the head 5 with his flashlight. 6 25. After Plaintiff returned from Mercy Hospital to USP-Atwater, he was given a medical examination on April 9, 2007, by Bureau of Prisons staff. 7 8 B. 9 1. Plaintiff’s Facts Disputed by Defendants White and Miller 10 11 12 Disputed Facts a. On April 7, 2007, Defendants White and Miller expressly or tacitly agreed with Eric McEachern to use unlawful physical force on Plaintiff. b. The interaction with Plaintiff in the R & D cell on April 7, 2007, as agreed to by the 13 three Defendants, was not undertaken pursuant to Bureau of Prisons policy. 14 c. At no time when Defendants White and Miller were in the cell with Plaintiff was 15 there any justification for either Defendant to use force against Plaintiff under 16 applicable Bureau of Prisons policy or under the Eighth Amendment. 17 18 19 d. Before Eric McEachern struck Plaintiff twice with a flashlight, Defendants White and Miller hit him with their fists and Defendant Miller kicked him. e. Plaintiff suffered physical injuries and pain, and mental and emotional injuries, 20 from being struck by Eric McEachern, hit by Defendant White and hit and kicked 21 by Defendant Miller. 22 f. Defendants White and Miller and Eric McEachern acted with actual malice in 23 violation of the Eighth Amendment to the Constitution in that they were not 24 justified in using any force on Plaintiff, yet they maliciously and sadistically used 25 force that was far beyond de minimis. 26 2. Defendants’ Facts Disputed by Plaintiff 27 a. The R & D Unit is also used as the Alternate Observation Area. 28 5 1 2 b. On April 7, 2007, correctional staff moved Plaintiff to the R & D Unit for observation because the other observation cells were occupied. 3 c. The discussion among Eric McEachern and Defendants White and Miller on April 4 7, 2007, prior to the events in which Plaintiff was injured, involved how to have a 5 conversation with Plaintiff that would discourage him from other misbehavior. 6 7 8 9 d. Defendants White and Miller were not the cause of any physical or emotional injury allegedly suffered by Plaintiff on or about April 7, 2007, or thereafter. e. Defendants White and Miller did not separately or collectively use unlawful physical force against Plaintiff on or about April 7, 2007. 10 f. Defendants White and Miller did not know, nor should they have known, that Eric 11 McEachern intended to strike Plaintiff with a flashlight at any time on or about 12 April 7, 2007. 13 14 g. Defendants White and Miller and Eric McEachern, on or about April 7, 2007, did not explicitly or implicitly agree to use force separately or collectively on Plaintiff. 15 h. The medical record of Plaintiff’s examination at USP-Atwater on April 9, 2007 16 indicates that Plaintiff, in addition to his head wound, had a contusion with 17 hematoma on his upper thigh, linear abrasions to both wrists, a hematoma on his 18 left biceps, and soreness in his pelvic area. Mercy Hospital medical staff who 19 treated Plaintiff did not observe these additional injuries at the time of treatment. 20 Bureau of Prisons Internal Affairs neither attributed these injuries to Defendants 21 Miller and White, nor were they criminally charged for allegedly causing these 22 injuries to Plaintiff. 23 i. While Eric McEachern was in the cell with Plaintiff, he struck Plaintiff twice with 24 his flashlight. Defendants White and Miller observed Eric McEachern strike 25 Plaintiff, but they did not have time to stop the incident. 26 j. Shortly following the incident in which Plaintiff was assaulted, Defendants White 27 and Miller and Eric McEachern discussed what they would report regarding the 28 cause of Plaintiff’s injuries. 6 1 k. Eric McEachern was criminally charged for striking Plaintiff in the head with his flashlight and acquitted at trial of any criminal wrongdoing. 2 3 l. Defendants Miller and White were not found to have participated in Eric 4 McEachern’s assault on Plaintiff and, thus, were not criminally charged. 5 C. 6 1. The parties may disagree on the extent to which Plaintiff’s prior criminal history 7 Disputed Evidentiary Issues can be introduced into evidence. 8 2. The parties disagree on the relevance of evidence related to actions of Defendants 9 White and Miller related to their reporting that Plaintiff had injured himself and 10 related to the significance of housing Plaintiff in the R & D Unit, including the fact 11 that there are no cameras that provide video coverage in the R & D cells; that there 12 were no other prisoners in the R & D cells at the time; that these Defendants made 13 false statements about the incident shortly after Plaintiff was injured; and that 14 Defendant Miller contacted Mr. McEachern to ask him if he was going ahead with 15 filing a false report about the incident. 16 17 3. The parties disagree on whether Defendants can introduce testimony from the McEachern criminal trial. 18 4. The parties disagree on whether Defendants should be required to designate specific 19 documents from Plaintiff’s Bureau of Prisons institutional file as exhibits, rather 20 than the entire section, in light of the waste of time that would be required to 21 resolve evidentiary objections to the mass of irrelevant documents that the file 22 includes. 23 24 25 26 5. The parties disagree on whether Defendants can list witnesses, other than parties, without providing addresses for the witness. 6. The parties disagree on whether the fact that Eric McEachern was tried, and acquitted, of a violation of Plaintiff’s civil rights is admissible in this trial. 27 28 7 1 7. The parties disagree on whether the fact that the United States declined to prosecute 2 Defendants White and Miller in connection with the events on April 7, 2007, is 3 admissible in this trial. 8. The parties disagree on whether Defendants can reserve the right to add exhibits 4 (other than true rebuttal exhibits) after the Joint Pretrial Statement is filed. 5 9. Plaintiff will seek an order requiring Defendants to specify any expert testimony 6 7 they intend to offer at trial so that Plaintiff may seek a pre-trial determination of the 8 admissibility of that testimony under Fed. R. Evid. 702 and 703. D. 9 Pursuant to Local Rule 281(b)(6), the following special factual information pertains to this 10 11 Special Factual Information action: 12 None applicable. 13 IV. 14 Plaintiff seeks compensatory damages for pain and suffering from his physical injuries and Relief Sought 15 from his mental and emotional injuries as a result of Defendants’ violation of the Eighth Amendment. 16 Plaintiff does not claim medical expenses, estimated future medical expenses, any period of total or 17 partial disability, loss of earnings, loss of future earnings or property damage. 18 Plaintiff seeks punitive damages for Defendants’ use of force without legal justification and 19 with actual malice. 20 V. 21 22 Points of Law A. Eighth Amendment Plaintiff claims that Eric McEachern and Defendants White and Miller violated Plaintiff’s right 23 under the Eighth Amendment not to be subjected to the malicious and sadistic use of force beyond de 24 minimis for the purpose of causing harm. See Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 1178 25 (2010); Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). 26 B. Joint and Several Liability for Damages 27 Plaintiff claims that Eric McEachern and Defendants White and Miller are jointly and severally 28 liable for the damages based on the physical and emotional pain and suffering sustained by Plaintiff by 8 1 virtue of their conspiracy to injure Plaintiff. See, e.g., Oki Semiconductor Co. v. Wells Fargo Bank, 2 Nat. Ass’n, 298 F.3d 768, 775 (9th Cir. 2002); In re Yahoo! Litig., 251 F.R.D. 459, 474 n. 11 (C.D. 3 Cal. 2008). 4 5 C. Punitive Damages Plaintiff claims punitive damages against Eric McEachern and Defendants White and Miller. 6 See Carlson v. Green, 446 U.S. 14, 22 (1998) (approving the award of punitive damages in Bivens 7 actions); Smith v. Wade, 461 U.S. 30, 46-47 (1982) (finding that jury was entitled to impose punitive 8 damages on correctional officers in a § 1983 case if jury found either actual malice or reckless 9 indifference to prisoner’s safety). 10 D. 11 Qualified Immunity Defendants Miller and White claim that they have qualified immunity from any theory of 12 liability asserted by the Plaintiff. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity 13 protects government officials from liability for civil damages insofar as their conduct does not violate 14 clearly established statutory or constitutional rights); Pearson v. Callahan, 555 U.S. 223 (2009) (a 15 court considering a claim of qualified immunity must determine whether the plaintiff has alleged the 16 deprivation of an actual constitutional right and whether such right was clearly established such that it 17 would be clear to a reasonable officer that his conduct was unlawful); Whitley v. Albers, 475 U.S. 312, 18 321-22 (1986) (when a prison official attempts to resolve a disturbance, the inquiry turns on whether 19 force was applied in good faith effort to maintain or restore discipline or maliciously and sadistically 20 for the very purpose of causing harm). 21 22 E. De Minimis Use of Force Defendants Miller and White claim that any force used by either of them was done in good 23 faith and a de minimis application. Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth 24 Amendment excessive force standard examines de minimis uses of force, not de minimis injuries). 25 F. Conspiracy 26 Defendants Miller and White claim that they did not enter into any conspiracy with Eric 27 McEachern to deprive Plaintiff of his constitutional rights before entering his holding cell or any time 28 thereafter. Hart v. Parks, 450 F.3d 1059, 1069 (9th Cir. 2006) (to prove a conspiracy under section 9 1 1983, the plaintiff must show an agreement or a meeting of the minds to violate a constitutional right); 2 Thompson v. City of Lawrence, 58 F.3d 1511, 1517 (10th Cir. 1995) (a conspiracy under section 1983 3 requires that the plaintiff prove both the existence of a conspiracy and the deprivation of a 4 constitutional right). 5 VI. 6 None. 7 VII. 8 The following is a list of witnesses that the parties expect to call at trial, including rebuttal and 9 Abandoned Issues Witnesses impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, 10 MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING 11 THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. 12 Civ. P. 16(e); Local Rule 281(b)(10). 13 VII. Witnesses 14 The following is a list of witnesses that the parties expect to call at trial, including rebuttal and 15 impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, 16 MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING 17 THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. 18 Civ. P. 16(e); Local Rule 281(b)(10). 19 A. Plaintiff’s Witnesses 20 1. Plaintiff Maximiliano Monclova Chavez 21 2. Defendant Timothy Miller 22 3. Defendant Kenneth White 23 4. B. Urbano 24 5. Plaintiff reserves the right to call any witness listed by Defendants. 25 B. Defendants’ Witnesses 26 1. Defendant Timothy Miller 27 2. Defendant Kenneth White 28 3. Eric McEachern 10 1 4. Capt. Johnathan Karte 2 5. Warden Dennis Smith 3 6. Officer Matthew Tincher 4 7. Officer Phelix McKneely 5 8. Officer Eckert 6 9. Officer Nathan Davenport 7 10. Officer Jason Dixon 8 11. Officer Jason Renteria 9 12. Officer Cutehmoc Oliveros 10 13. Officer Micheal Henandez 11 14. Officer Jerome Schroer 12 15. Officer Sam Gonzalez 13 16. Officer Kenneth Stillwell 14 17. Officer Gray 15 18. Officer Daniel Moradzadeh 16 19. Dr. Amy Fenchel 17 20. SIS Tech Joel Zaragoza 18 21. P.A. Billy Urbano 19 22. Officer Johnny Williams 20 23. Officer Kenneth Dugdale 21 24. Plaintiff Maximiliano Monclova Chavez 22 25. C.D. Cole 23 Non-Retained Experts 24 26. Harry L. Smith, Ph.D, M.D. 25 27. Stephen Backman, D.O. 26 28. Mark a Wagner, D.O. 27 29. Capt. Ray Garcia 28 VIII. Exhibits 11 1 The following is a list of documents or other exhibits that the parties expect to offer at trial. 2 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED 3 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD 4 BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 5 281(b)(11). Plaintiff’s Exhibits 6 A. 7 Pleadings 8 1. Kenneth White Answer to Complaint 4/24/09 9 2. Timothy Miller Answer to Complaint 4/24/09 10 3. Kenneth White Amended Answer to Complaint 6/14/11 11 4. Timothy Miller Amended Answer to Complaint 6/14/11 12 BOP Investigation File 13 5. After-Action Review Report 4/7/07 14 6. Referral of Incident (Internal Affairs) 4/13/07 15 7. Abbreviated Report of Investigation 9/8/10 16 8. Memorandum of Investigation: Interview of Timothy D. Miller 5/25/07 17 9. Affidavit of Timothy D. Miller 5/29/07 18 10. Memorandum of Investigation: Signed Statement of Lt. Kenneth White 5/29/07 19 11. Affidavit of Kenneth White 5/24/07 20 12. Letter from D. Smith to Timothy Miller 10/26/07 21 13. Letter from D. Smith to Kenneth White 10/19/07 22 14. Set of Photographs of Maximiliano Monclova-Chavez 4/9/07: 23 a. BOP 000115 24 b. BOP 000116 25 c. BOP 000117 26 d. BOP 000118 27 e. BOP 000119 28 Medical Records 12 1 15. Mercy Medical Center Merced Records for Maximiliano Monclova-Chavez 4/07/07 2 16. BOP Medical Records Excerpts: 3 a. Chronological Record Entry 10/11/08 4 b. Intake screening at Coleman 10/2/07 5 c. Chronological Record Entry 5/15/07 6 d. Medication Record 5/9/07 7 e. Medical Summary from Atwater 5/9/07 8 f. SOAP note 4/7/07 9 g. SOAP Note 5/2/07 10 h. Medication Profile FCI Victorville 11 i. BOP Transfer Form 5/28/07 12 j. Inmate Injury Assessment Form 4/9/07 13 k. Inmate Injury Assessment Form 4/7/09 14 Institutional File 15 17. Intake Screening (Medical) 5/26/06 3 pages 16 BOP Policies 17 18. Program Statement 3420.09 (Employee Conduct) 2/5/99 18 19. Program Statement P5566.06 (Use of Force and Application of Restraints) 11/30/05 19 Other 20 20. Excerpts from Kenneth White Testimony (United States v. McEachern, 1:08-cr-138 LJO) 21 21. Excerpts from Timothy Miller Testimony (United States v. McEachern, 1:08-cr-138 LJO) 22 22. Plaintiff reserves the right to introduce any exhibit listed by Defendants. 23 B. 24 Pleadings 25 1. Plaintiff’s Complaint 26 2. Kenneth White Amended Answer to Complaint 6/14/11 27 3. Timothy Miller Amended Answer to Complaint 6/14/11 28 BOP Investigation File Defendants’ Exhibits 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 4. Report of Incident / Form 583 Dated: April 7, 2007 Submitted by: D. Smith (BOP 000001-000004) 5. After Action Report Dated: April 7, 2007 Submitted by: D. Smith (BOP 000005-000006) 6. Report of Incident Dated: April 7, 2007 Submitted by: D. Smith (BOP 000007-000010) 7. After Action Report Dated: April 7, 2007 Submitted by: D. Smith (BOP 00000-00000) 8. Referral of Incident Dated: April 13, 2007 Submitted by: C.D. Cole (BOP 000013-000017) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Abbreviated Report of Investigation Dated: September 8, 2010 (BOP 000018-000019) 10. Memorandum of Investigation Dated: April 22, 2008 Submitted by: Redacted (BOP 000043-000053) 11. Memorandum of Investigation Dated: May 8, 2007 Submitted by: Redacted (BOP 000055-000060) 12. Memorandum of Investigation Dated: May 25, 2007 Submitted by: Redacted (BOP 000061-000066) 13. Memorandum of Investigation Dated: May 29, 2007 Submitted by: Redacted 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (BOP 000067-000070) 14. Memorandum of Investigation Dated: May 31, 2007 Submitted by: Redacted (BOP 000091-000098) 15. Indictment of Eric McEachern Dated: May 1, 2008 (BOP 000102-000107) 16. Verdict Form in the matter of U.S. v. Eric McEachern Dated: June 28, 2010 (BOP 000109) 17. Mercy Medical Center Merced Emergency Room Report Dated: April 7, 2007 Prepared by: Stephen Backman, D.O. (BOP 000110-000112) 18. Mercy Medical Center Merced Diagnostic Imaging Report Dated: April 7, 2007 (BOP 000113) 19. Photos of Plaintiff Monclova-Chavez Dated: April 9, 2007 Taken by: J. Zaragoza (BOP 000115-000121) 20. Photos of Plaintiff Monclova-Chavez Dated: April 7, 2007 Taken by: E. McEachern (BOP 000122-000129) 23 21. Video Recording – Cell Extraction of Plaintiff Monclova-Chavez Dated: April 7, 2007 24 22. BOP Medical Records Excerpts: 25 a. Chronological Record Entry 10/11/08 26 b. Intake screening at Coleman 10/2/07 27 c. Chronological Record Entry 5/15/07 28 d. Medication Record 5/9/07 15 1 e. Medical Summary from Atwater 5/9/07 2 f. SOAP note 4/7/07 3 g. SOAP Note 5/2/07 4 h. Medication Profile FCI Victorville 5 i. BOP Transfer Form 5/28/07 6 j. Inmate Injury Assessment Form 4/9/07 7 k. Inmate Injury Assessment Form 4/7/09 8 9 10 Institutional File 23. Central File of Plaintiff Monclova-Chavez 11 a. Section PPG-O 12 b. Section PP-44 13 c. Section PD-15 14 Other 15 24. LJO) 16 17 25. 26. Excerpts from Harry L. Smith, Ph.D, M.D. Testimony (United States v. McEachern, 1:08-cr-138 LJO) 20 21 Excerpts from Timothy Miller Testimony (United States v. McEachern, 1:08-cr-138 LJO) 18 19 Excerpts from Kenneth White Testimony (United States v. McEachern, 1:08-cr-138 27. Defendants reserve the right to introduce any exhibit listed by Plaintiff. Defendants 22 reserve the right to withdraw any exhibit identified herein. Defendants further reserve 23 the right to seek leave of court to amend or modify the exhibits identified herein. 24 25 X. Discovery Documents To Be Used At Trial (Answers To Interrogatories And Responses To Requests For Admissions) 26 Plaintiff’s Discovery Documents 27 1. Interrogatory and Response 2, Timothy Miller Response to Interrogatories 7/28/11, with 28 verification 16 2. Interrogatory and Response 2, Kenneth White Response to Interrogatories, 7/28/11, with 1 verification 2 3 Defendants’ Discovery Documents 4 3. Interrogatory and Response to Special Interrogatories, Set 2, Maximilian MonclovaChavez, 12/13/11, with verification 5 6 X. 7 No further discovery is anticipated. 8 Even though discovery is closed, all parties are reminded of their continuing obligation to 9 Further Discovery or Motions update all discovery responses previously made if that party becomes aware of new information or 10 becomes aware that an answer in a previous response is incomplete or incorrect. Fed. R. Civ. P. 11 26(e)(2). 12 Plaintiff will seek to subpoena the originals of Exhibit 13 from the Bureau of Prisons. 13 If any party intends to file motions in limine, the procedure and time requirements are set forth 14 below. 15 XI. Stipulations 16 None, aside from the undisputed facts. 17 XII. 18 None. 19 XIII. Settlement Negotiations 20 No settlement conference has taken place. If the parties believe a settlement may be useful, Amendments/Dismissals 21 they may contact the Chambers of Magistrate Judge Barbara A. McAuliffe at (559)-499-5788 to 22 arrange a settlement conference. 23 XIV. Agreed Statement 24 No party believes that a presentation of some or all of the evidence by agreed statement is 25 26 feasible or advisable. XV. Separate Trial of Issues 27 28 17 1 As is this Court’s custom, the trial will include liability, the amount of any damages, and 2 whether the jury believes punitive damages are available. If punitive damages are warranted, the 3 Court will conduct a bifurcated trial to determine the amount of any punitive damages. 4 XVI. Experts 5 Neither party has designated experts. Neither party contemplates requesting the appointment 6 of an impartial expert. 7 XVII. Attorneys’ Fees 8 Defendants White and Miller seek attorney fees and costs should they prevail at trial. 9 XVIII. Trial Exhibits 10 11 Plaintiff may request return of exhibits in light of the severed trial regarding Defendant Tincher. 12 XIX. Further Trial Preparation 13 A. Motions In Limine Hearing and Briefing Schedule 14 Any party may file a motion in limine. The purpose of a motion in limine is to establish in 15 advance of the trial that certain evidence should not be offered at trial. Although the Federal Rules do 16 not explicitly provide for the filing of motions in limine, the court has the inherent power to hear and 17 decide such motions as a function of its duty to expeditiously manage trials by eliminating evidence 18 that is clearly inadmissible for any purpose. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984); 19 Jonasson v. Lutheran Child and Family Services, 115 F. 3d 436, 440 (7th Cir. 1997). The court will 20 grant a motion in limine, and thereby bar use of the evidence in question, only if the moving party 21 establishes that the evidence clearly is not admissible for any valid purpose. Id.; Hawthorne Partners 22 v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). 23 All motions in limine must be served on the other party or parties, and filed with the court, by 24 July 2, 2013. Any motion in limine must clearly identify the nature of the evidence that the moving 25 party seeks to prohibit the other side from offering at trial. 26 27 Any opposition to a motion in limine must be served on the other party or parties, and filed with the court, by July 16, 2013. 28 18 1 2 3 4 If any party files a motion in limine, the court will hear and decide such motions on July 22, 2013 at 2:00 p.m. in Courtroom Two. Whether or not a party files a motion in limine, that party may still object to the introduction of evidence during the trial. 5 B. Duty of Counsel to Pre-Mark Exhibits 6 The parties are ordered to confer no later than June 24, 2013, for purposes of pre-marking and 7 examining each other’s exhibits. All joint exhibits must be pre-marked with numbers preceded by the 8 designation JT/-- (e.g., JT/1, JT/2). All of Plaintiff’s exhibits shall be pre-marked with numbers. All 9 of Defendants’ exhibits shall be pre-marked with letters. 10 1. Counsel shall create four (4) complete, legible sets of exhibits in binders as follows: 11 (a) Two sets of binders to be delivered to Courtroom Clerk Harold Nazaroff no later than 12 July 25, 2013, one for use by the Courtroom Clerk and the other for the court; and One set for each counsel’s own use. 13 (b) 14 If the parties desire, they may have a fifth set of binders to be used for the purposes of 15 16 questioning witnesses. 2. Counsel are to confer and make the following determination with respect to each 17 proposed exhibit to be introduced into evidence, and to prepare separate indexes - one listing joint 18 exhibits, and one listing each party’s separate exhibits: 19 (a) Duplicate exhibits, i.e., documents which both sides desire to introduce into evidence, 20 shall be marked as a joint exhibit, and numbered as directed above. Joint exhibits shall be listed on a 21 separate index, and shall be admitted into evidence on the motion of any party, without further 22 foundation. 23 (b) As to exhibits that are not jointly offered, and to which there is no objection to 24 introduction, those exhibits will likewise be appropriately marked, e.g., Plaintiff’s Exhibit 1 or 25 Defendants’ Exhibit A, and shall be listed in the offering party’s index in a column entitled “Admitted 26 In Evidence.” Such exhibits will be admitted upon introduction and motion of the party, without 27 further foundation. 28 19 1 (c) Those exhibits to which the only objection is a lack of foundation shall be marked 2 appropriately, e.g., Plaintiff’s Exhibit 2 - For Identification, or Defendants’ Exhibit B - For 3 Identification, and indexed in a column entitled “Objection Foundation.” 4 (d) Remaining exhibits as to which there are objections to admissibility not solely based on 5 a lack of foundation shall likewise be marked appropriately, e.g., Plaintiff’s Exhibit 3 - For 6 Identification or Defendants’ Exhibit C - For Identification, and indexed in a third column entitled 7 “Other Objection” on the offering party’s index. 8 9 3. Each separate index shall consist of the exhibit number or letter, a brief description of the exhibit, and the three columns outlined above, as demonstrated in the example below: 10 INDEX OF EXHIBITS 11 12 13 14 15 EXHIBIT # DESCRIPTION ADMITTED IN EVIDENCE OBJECTION FOUNDATION OTHER OBJECTION Two sets of the completed joint index and the separate indexes shall be delivered to the Courtroom Clerk with the two sets of binders. 16 The court has no objection to counsel using copies. However, the copies must be legible. If 17 any document is offered into evidence that is partially illegible, the court may sua sponte exclude it 18 from evidence. 19 C. Discovery Documents 20 By July 25, 2013, each party shall file a list of all discovery documents the party intends to use 21 at trial. The list shall indicate whether each discovery document has previously been lodged with the 22 Clerk. If the discovery document has not been previously lodged, the party shall so lodge the 23 document with the Courtroom Clerk by July 25, 2013. 24 D. Trial Briefs 25 The parties are directed to file and serve a Trial Brief by July 9, 2013. Local Rule 285. The 26 parties need not include in the Trial Brief any issue that is adequately addressed in a motion in limine, 27 28 20 1 or in an opposition brief to a motion in limine. Any response to a Trial Brief shall be filed and served 2 by July 16, 2013. 3 E. Voir Dire 4 The parties shall file and serve proposed voir dire questions, if any, by 4:00 p.m., July 25, 5 6 2013. Co-Defendants may file joint proposed voir dire questions. Further, in order to aid the court in the proper voir dire examination of the prospective jurors, 7 counsel should lodge with the court on the first morning of trial a list of all prospective witnesses, 8 including rebuttal witnesses, that counsel reasonably expect to call. The purpose of the list is to advise 9 the prospective jurors of possible witnesses to determine if a prospective juror is familiar with any 10 potential witness. 11 F. Agreed Summary Of The Case 12 The parties shall lodge with the Courtroom Clerk a joint agreed summary of the case, briefly 13 outlining the positions of the parties by 4:00 p.m. on July 25, 2013. The summary will be read to the 14 jury panel at the outset of the trial solely for the purposes of assisting in the jury selection process. 15 The contents of the summary shall not be deemed to be evidence or an admission or stipulation by a 16 party as to any contested fact or issue. 17 G. Proposed Jury Instructions 18 The parties shall file and serve proposed jury instructions by July 16, 2013. Electronic filers 19 shall also attach a copy of their proposed jury instructions to an e-mail, which the party shall send to: 20 awiorders@caed.uscourts.gov. 21 All proposed jury instructions shall be in duplicate. One set shall indicate the party proposing 22 the instruction, with each instruction numbered or lettered, shall cite supporting authority, and shall 23 include the customary “Given, Given as Modified, or Refused,” showing the court’s action with regard 24 to each instruction. The other set shall be an exact copy of the first set, but shall be a “clean” copy that 25 does not contain the identification of the offering party, instruction number or letter, supporting 26 authority, or reference to the court’s disposition of the proposed instruction. 27 28 The parties are ordered to confer after the trial confirmation hearing to determine which instructions they agree should be given. As soon as possible thereafter, the parties shall submit a list 21 1 of joint, unopposed instructions. As to those instructions to which the parties dispute, the court will 2 conduct its jury instruction conference during trial at a convenient time. 3 H. Proposed Verdict Form 4 The parties shall file and serve a proposed verdict form by July 16, 2013. 5 I. Use Of Videotape and Computers 6 Any party wishing to use a videotape for any purpose during trial shall lodge a copy of the 7 videotape with the Courtroom Clerk by 4:00 p.m. on Thursday, July 25, 2013. If a written transcript 8 of audible words on the tape is available, the court requests that the transcript be lodged with the court, 9 solely for the aid of the court. 10 If counsel intends to use a laptop computer for presentation of evidence, they shall contact the 11 courtroom deputy clerk at least one week prior to trial. The courtroom deputy clerk will then arrange 12 a time for counsel to bring the laptop to the courtroom, and meet with a representative of the 13 Information and Technology Department and receive a brief training session on how counsel’s 14 equipment interacts with the court’s audio/visual equipment. If counsel intends to use PowerPoint, the 15 resolution should be set no higher than 1024 x 768 when preparing the presentation. 16 J. Morning Conferences During Trial 17 During the trial, it is the obligation of counsel to meet with the court each morning to advise 18 the court and opposing counsel as to what documents are proposed to be put into evidence that have 19 not previously been admitted by stipulation, court order, or otherwise ruled upon. The court will rule 20 on those documents, to the extent possible, prior to the commencement of trial each day out of the 21 presence of the jury. If the ruling depends upon the receipt of testimony, the court will rule as 22 requested upon the receipt of such testimony. 23 The court shall consider any other legal matter at morning conferences as well. The court does 24 not wish to recess the trial to hear legal argument outside of the presence of the jury, and proper 25 preparation by counsel will eliminate the need for that result. 26 K. Order Of Witnesses 27 28 22 1 In order to make the trial operate efficiently and smoothly, each counsel has the continuing 2 obligation to advise opposing counsel as to what witnesses he or she intends to call at each trial 3 session. 4 XX. Objections to Pretrial Order 5 Any party may, within ten (10) calendar days after the date of service of this Order, file and 6 serve written objections to any of the provisions of this Order. Such objections shall specify the 7 requested modifications, corrections, additions or deletions. 8 XXI. Rules of Conduct During Trial 9 A. General Rules 10 1. All participants in the trial shall conduct themselves in a civil manner. There shall be 11 no hostile interchanges between any of the participants. 12 2. 13 the court. 14 3. 15 16 All oral presentations shall be made from the podium, unless otherwise permitted by Sidebar conferences are discouraged. Legal arguments or discussion of issues outside the presence of the jury should be done during recesses. 4. Counsel shall advise their respective clients and witnesses not to discuss any aspect of 17 the case in the common areas of the courthouse accessible to the jurors, such as the lobby, the 18 elevators, the hallways and the cafeteria. 19 B. Jury Selection 20 1. The court will conduct voir dire to be supplemented by any written questions submitted 21 by counsel prior to trial and after the court has concluded its questioning of the jury panel. In some 22 circumstances, the court may allow brief direct questioning by counsel. 23 C. Opening Statements 24 1. Counsel may use visual aids in presenting the opening statement. However, any 25 proposed visual aids shall be shown to opposing counsel before opening statement. 26 D. Case in Chief 27 1. Counsel shall have his/her witnesses readily available to testify so that there are no 28 delays in the presentation of evidence to the trier of fact. 23 1 2. At the close of each trial day, counsel shall disclose his/her anticipated witnesses and 2 order of presentation for the next day, so that any scheduling or evidentiary issues may be raised at 3 that time. 4 E. Witnesses 5 1. Before approaching a witness, counsel shall secure leave of court to approach the 6 witness. 7 2. 8 opposing counsel. 9 F. Exhibits 10 1. All exhibits shall be marked and identified in accordance with the instructions in the 11 12 13 14 Before approaching a witness with a writing, counsel shall first show the writing to Pretrial Order. 2. An exhibit shall not be published to the jury until it has been admitted into evidence and counsel has secured leave of court to publish the exhibit. 3. The court usually will conduct an on the record review of the exhibits that have been 15 admitted in evidence at the conclusion of each party’s case in chief and after each party has rested its 16 entire case. 17 G. Objections 18 1. No speaking objections or arguments are permitted in the presence of the jury. Counsel 19 shall state the specific legal ground(s) for the objection, and the court will rule based upon the 20 ground(s) stated. The court will permit counsel to argue the matter at the next recess. 21 2. The court will not assume that any objection made also implies with it a motion to 22 strike an answer that has been given. Therefore, counsel who has made an objection, and who also 23 wishes to have an answer stricken, shall also specifically move to strike the answer. 24 H. Closing Argument 25 1. Counsel may use visual aids in presenting the closing argument. However, any 26 proposed visual aids shall be shown to opposing counsel before closing argument. 27 28 24 1 FAILURE TO COMPLY WITH ALL PROVISIONS OF THIS ORDER MAY BE 2 GROUNDS FOR THE IMPOSITION OF SANCTIONS, INCLUDING POSSIBLE DISMISSAL OF 3 THIS ACTION OR ENTRY OF DEFAULT, ON ANY AND ALL COUNSEL AS WELL AS ON 4 ANY PARTY WHO CAUSES NON-COMPLIANCE WITH THIS ORDER. 5 6 7 8 9 == 10 C. Plaintiff’s Witnesses 11 6. Plaintiff Maximiliano Monclova Chavez 12 7. Defendant Timothy Miller 13 8. Defendant Kenneth White 14 9. B. Urbano 15 10. Plaintiff reserves the right to call any witness listed by Defendants. 16 D. Defendants’ Witnesses 17 30. Defendant Timothy Miller 18 31. Defendant Kenneth White 19 32. Eric McEachern 20 33. Capt. Johnathan Karte 21 34. Warden Dennis Smith 22 35. Officer Matthew Tincher 23 36. Officer Phelix McKneely 24 37. Officer Eckert 25 38. Officer Nathan Davenport 26 39. Officer Jason Dixon 27 40. Officer Jason Renteria 28 41. Officer Cutehmoc Oliveros 25 1 42. Officer Micheal Henandez 2 43. Officer Jerome Schroer 3 44. Officer Sam Gonzalez 4 45. Officer Kenneth Stillwell 5 46. Officer Gray 6 47. Officer Daniel Moradzadeh 7 48. Dr. Amy Fenchel 8 49. SIS Tech Joel Zaragoza 9 50. P.A. Billy Urbano 10 51. Officer Johnny Williams 11 52. Officer Kenneth Dugdale 12 53. Plaintiff Maximiliano Monclova Chavez 13 Non-Retained Experts 14 54. Harry L. Smith, Ph.D, M.D. 15 55. Stephen Backman, D.O. 16 56. Mark a Wagner, D.O. 17 57. Capt. Ray Garcia 18 VIII. Exhibits 19 The following is a list of documents or other exhibits that the parties expect to offer at trial. 20 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED 21 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD 22 BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 23 281(b)(11). Plaintiff’s Exhibits 24 C. 25 Pleadings 26 28. Kenneth White Answer to Complaint 4/24/09 27 29. Timothy Miller Answer to Complaint 4/24/09 28 30. Kenneth White Amended Answer to Complaint 6/14/11 26 1 31. Timothy Miller Amended Answer to Complaint 6/14/11 2 BOP Investigation File 3 32. After-Action Review Report 4/7/07 4 33. Referral of Incident (Internal Affairs) 4/13/07 5 34. Abbreviated Report of Investigation 9/8/10 6 35. Memorandum of Investigation: Interview of Timothy D. Miller 5/25/07 7 36. Affidavit of Timothy D. Miller 5/29/07 8 37. Memorandum of Investigation: Signed Statement of Lt. Kenneth White 5/29/07 9 38. Affidavit of Kenneth White 5/24/07 10 39. Letter from D. Smith to Timothy Miller 10/26/07 11 40. Letter from D. Smith to Kenneth White 10/19/07 12 41. Set of Photographs of Maximiliano Monclova-Chavez 4/9/07: 13 a. BOP 000115 14 b. BOP 000116 15 c. BOP 000117 16 d. BOP 000118 17 e. BOP 000119 18 Medical Records 19 42. Mercy Medical Center Merced Records for Maximiliano Monclova-Chavez 4/07/07 20 43. BOP Medical Records Excerpts: 21 a. Chronological Record Entry 10/11/08 22 b. Intake screening at Coleman 10/2/07 23 c. Chronological Record Entry 5/15/07 24 d. Medication Record 5/9/07 25 e. Medical Summary from Atwater 5/9/07 26 f. SOAP note 4/7/07 27 g. SOAP Note 5/2/07 28 h. Medication Profile FCI Victorville 27 1 i. BOP Transfer Form 5/28/07 2 j. Inmate Injury Assessment Form 4/9/07 3 k. Inmate Injury Assessment Form 4/7/09 4 Institutional File 5 44. Intake Screening (Medical) 5/26/06 3 pages 6 BOP Policies 7 45. Program Statement 3420.09 (Employee Conduct) 2/5/99 8 46. Program Statement P5566.06 (Use of Force and Application of Restraints) 11/30/05 9 Other 10 47. Excerpts from Kenneth White Testimony (United States v. McEachern, 1:08-cr-138 LJO) 11 48. Excerpts from Timothy Miller Testimony (United States v. McEachern, 1:08-cr-138 LJO) 12 49. Plaintiff reserves the right to introduce any exhibit listed by Defendants. 13 D. 14 Pleadings 15 23. Plaintiff’s Complaint 16 24. Kenneth White Amended Answer to Complaint 6/14/11 17 25. Timothy Miller Amended Answer to Complaint 6/14/11 18 BOP Investigation File 19 26. Report of Incident / Form 583 Dated: April 7, 2007 Submitted by: D. Smith (BOP 000001-000004) 20 21 22 23 24 25 26 27 28 Defendants’ Exhibits 27. After Action Report Dated: April 7, 2007 Submitted by: D. Smith (BOP 000005-000006) 28. Report of Incident Dated: April 7, 2007 Submitted by: D. Smith (BOP 000007-000010) 29. After Action Report 28 1 2 3 4 5 6 7 Dated: April 7, 2007 Submitted by: D. Smith (BOP 00000-00000) 30. Referral of Incident Dated: April 13, 2007 Submitted by: C.D. Cole (BOP 000013-000017) 31. Abbreviated Report of Investigation Dated: September 8, 2010 (BOP 000018-000019) 8 9 10 32. Memorandum of Investigation Dated: April 22, 2008 Submitted by: Redacted (BOP 000043-000053) 11 12 13 33. Memorandum of Investigation Dated: May 8, 2007 Submitted by: Redacted (BOP 000055-000060) 14 15 16 17 18 19 20 21 22 23 24 34. Memorandum of Investigation Dated: May 25, 2007 Submitted by: Redacted (BOP 000061-000066) 35. Memorandum of Investigation Dated: May 29, 2007 Submitted by: Redacted (BOP 000067-000070) 36. Memorandum of Investigation Dated: May 31, 2007 Submitted by: Redacted (BOP 000091-000098) 37. Indictment of Eric McEachern Dated: May 1, 2008 (BOP 000102-000107) 25 27 38. Verdict Form in the matter of U.S. v. Eric McEachern Dated: June 28, 2010 (BOP 000109) 28 39. Mercy Medical Center Merced 26 29 1 2 3 4 5 6 7 8 9 10 11 12 13 Emergency Room Report Dated: April 7, 2007 Prepared by: Stephen Backman, D.O. (BOP 000110-000112) 40. Mercy Medical Center Merced Diagnostic Imaging Report Dated: April 7, 2007 (BOP 000113) 41. Photos of Plaintiff Monclova-Chavez Dated: April 9, 2007 Taken by: J. Zaragoza (BOP 000115-000121) 42. Photos of Plaintiff Monclova-Chavez Dated: April 7, 2007 Taken by: E. McEachern (BOP 000122-000129) 43. Video Recording – Cell Extraction of Plaintiff Monclova-Chavez Dated: April 7, 2007 14 44. BOP Medical Records Excerpts: 15 16 17 18 19 20 21 22 23 24 25 26 27 a. Chronological Record Entry 10/11/08 b. Intake screening at Coleman 10/2/07 c. Chronological Record Entry 5/15/07 d. Medication Record 5/9/07 e. Medical Summary from Atwater 5/9/07 f. SOAP note 4/7/07 g. SOAP Note 5/2/07 h. Medication Profile FCI Victorville i. BOP Transfer Form 5/28/07 j. Inmate Injury Assessment Form 4/9/07 k. Inmate Injury Assessment Form 4/7/09 Institutional File 28 30 1 50. Central File of Plaintiff Monclova-Chavez 2 a. Section PPG-O 3 b. Section PP-44 4 c. Section PD-15 5 Other 6 51. LJO) 7 8 52. 53. Excerpts from Harry L. Smith, Ph.D, M.D. Testimony (United States v. McEachern, 1:08-cr-138 LJO) 11 12 Excerpts from Timothy Miller Testimony (United States v. McEachern, 1:08-cr-138 LJO) 9 10 Excerpts from Kenneth White Testimony (United States v. McEachern, 1:08-cr-138 54. Defendants reserve the right to introduce any exhibit listed by Plaintiff. Defendants 13 reserve the right to withdraw any exhibit identified herein. Defendants further reserve 14 the right to seek leave of court to amend or modify the exhibits identified herein. 15 16 IX. Discovery Documents To Be Used At Trial (Answers To Interrogatories And Responses To Requests For Admissions) 17 Plaintiff’s Discovery Documents 18 4. Interrogatory and Response 2, Timothy Miller Response to Interrogatories 7/28/11, with verification 19 20 5. Interrogatory and Response 2, Kenneth White Response to Interrogatories, 7/28/11, with verification 21 22 Defendants’ Discovery Documents 23 6. Interrogatory and Response to Special Interrogatories, Set 2, Maximilian MonclovaChavez, 12/13/11, with verification 24 25 X. 26 No further discovery is anticipated. 27 Even though discovery is closed, all parties are reminded of their continuing obligation to 28 Further Discovery or Motions update all discovery responses previously made if that party becomes aware of new information or 31 1 becomes aware that an answer in a previous response is incomplete or incorrect. Fed. R. Civ. P. 2 26(e)(2). 3 Plaintiff will seek to subpoena the originals of Exhibit 13 from the Bureau of Prisons. 4 If any party intends to file motions in limine, the procedure and time requirements are set forth 5 below. 6 XI. Stipulations 7 None, aside from the undisputed facts. 8 XII. 9 None. Amendments/Dismissals 10 XIII. Settlement Negotiations 11 No party anticipates settlement. 12 XIV. Agreed Statement 13 No party believes that a presentation of some or all of the evidence by agreed statement is 14 feasible or advisable. 15 XV. 16 The parties agree to bifurcate the issue of liability and compensatory damages from the issue of 17 Separate Trial of Issues punitive damages. 18 XVI. Experts 19 Neither party has designated experts. Neither party contemplates requesting the appointment 20 of an impartial expert. 21 XVII. Attorneys’ Fees 22 Defendants White and Miller seek attorney fees and costs should they prevail at trial. 23 XVIII. Trial Exhibits 24 Plaintiff may request return of exhibits in light of the severed trial regarding Defendant 25 Tincher. 26 XIX. Further Trial Preparation 27 L. Motions In Limine Hearing and Briefing Schedule 28 32 1 Any party may file a motion in limine. The purpose of a motion in limine is to establish in 2 advance of the trial that certain evidence should not be offered at trial. Although the Federal Rules do 3 not explicitly provide for the filing of motions in limine, the court has the inherent power to hear and 4 decide such motions as a function of its duty to expeditiously manage trials by eliminating evidence 5 that is clearly inadmissible for any purpose. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984); 6 Jonasson v. Lutheran Child and Family Services, 115 F. 3d 436, 440 (7th Cir. 1997). The court will 7 grant a motion in limine, and thereby bar use of the evidence in question, only if the moving party 8 establishes that the evidence clearly is not admissible for any valid purpose. Id.; Hawthorne Partners 9 v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). 10 All motions in limine must be served on the other party or parties, and filed with the court, by 11 July 2, 2013. Any motion in limine must clearly identify the nature of the evidence that the moving 12 party seeks to prohibit the other side from offering at trial. 13 14 15 16 17 18 Any opposition to a motion in limine must be served on the other party or parties, and filed with the court, by July 16, 2013. If any party files a motion in limine, the court will hear and decide such motions on the morning of trial at 8:30 a.m. Whether or not a party files a motion in limine, that party may still object to the introduction of evidence during the trial. 19 M. Duty of Counsel to Pre-Mark Exhibits 20 The parties are ordered to confer no later than June 24, 2013, for purposes of pre-marking and 21 examining each other’s exhibits. All joint exhibits must be pre-marked with numbers preceded by the 22 designation JT/-- (e.g., JT/1, JT/2). All of Plaintiff’s exhibits shall be pre-marked with numbers. All 23 of Defendants’ exhibits shall be pre-marked with letters. 24 1. Counsel shall create four (4) complete, legible sets of exhibits in binders as follows: 25 (a) Two sets of binders to be delivered to Courtroom Clerk Harold Nazaroff no later than 26 27 July 25, 2013, one for use by the Courtroom Clerk and the other for the court; and (b) One set for each counsel’s own use. 28 33 1 2 3 If the parties desire, they may have a fifth set of binders to be used for the purposes of questioning witnesses. 2. Counsel are to confer and make the following determination with respect to each 4 proposed exhibit to be introduced into evidence, and to prepare separate indexes - one listing joint 5 exhibits, and one listing each party’s separate exhibits: 6 (a) Duplicate exhibits, i.e., documents which both sides desire to introduce into evidence, 7 shall be marked as a joint exhibit, and numbered as directed above. Joint exhibits shall be listed on a 8 separate index, and shall be admitted into evidence on the motion of any party, without further 9 foundation. 10 (b) As to exhibits that are not jointly offered, and to which there is no objection to 11 introduction, those exhibits will likewise be appropriately marked, e.g., Plaintiff’s Exhibit 1 or 12 Defendants’ Exhibit A, and shall be listed in the offering party’s index in a column entitled “Admitted 13 In Evidence.” Such exhibits will be admitted upon introduction and motion of the party, without 14 further foundation. 15 (c) Those exhibits to which the only objection is a lack of foundation shall be marked 16 appropriately, e.g., Plaintiff’s Exhibit 2 - For Identification, or Defendants’ Exhibit B - For 17 Identification, and indexed in a column entitled “Objection Foundation.” 18 (d) Remaining exhibits as to which there are objections to admissibility not solely based on 19 a lack of foundation shall likewise be marked appropriately, e.g., Plaintiff’s Exhibit 3 - For 20 Identification or Defendants’ Exhibit C - For Identification, and indexed in a third column entitled 21 “Other Objection” on the offering party’s index. 22 23 3. Each separate index shall consist of the exhibit number or letter, a brief description of the exhibit, and the three columns outlined above, as demonstrated in the example below: INDEX OF EXHIBITS 24 25 26 EXHIBIT # DESCRIPTION ADMITTED IN EVIDENCE 27 28 34 OBJECTION FOUNDATION OTHER OBJECTION 1 2 Two sets of the completed joint index and the separate indexes shall be delivered to the Courtroom Clerk with the two sets of binders. 3 The court has no objection to counsel using copies. However, the copies must be legible. If 4 any document is offered into evidence that is partially illegible, the court may sua sponte exclude it 5 from evidence. 6 N. Discovery Documents 7 By July 25, 2013, each party shall file a list of all discovery documents the party intends to use 8 at trial. The list shall indicate whether each discovery document has previously been lodged with the 9 Clerk. If the discovery document has not been previously lodged, the party shall so lodge the 10 document with the Courtroom Clerk by July 25, 2013. 11 O. Trial Briefs 12 The parties are directed to file and serve a Trial Brief by July 18, 2013. Local Rule 285. The 13 parties need not include in the Trial Brief any issue that is adequately addressed in a motion in limine, 14 or in an opposition brief to a motion in limine. Any response to a Trial Brief shall be filed and served 15 by July 25, 2013. 16 P. Voir Dire 17 The parties shall file and serve proposed voir dire questions, if any, by 4:00 p.m. on Thursday, 18 19 July 25, 2013. Co-Defendants may file joint proposed voir dire questions. Further, in order to aid the court in the proper voir dire examination of the prospective jurors, 20 counsel should lodge with the court on the first morning of trial a list of all prospective witnesses, 21 including rebuttal witnesses, that counsel reasonably expect to call. The purpose of the list is to advise 22 the prospective jurors of possible witnesses to determine if a prospective juror is familiar with any 23 potential witness. 24 Q. Agreed Summary Of The Case 25 The parties shall lodge with the Courtroom Clerk a joint agreed summary of the case, briefly 26 outlining the positions of the parties by 4:00 p.m. on Thursday, July 25, 2013. The summary will be 27 read to the jury panel at the outset of the trial solely for the purposes of assisting in the jury selection 28 35 1 process. The contents of the summary shall not be deemed to be evidence or an admission or 2 stipulation by a party as to any contested fact or issue. 3 R. Proposed Jury Instructions 4 The parties shall file and serve proposed jury instructions by 4:00 p.m. on Thursday, July 25, 5 2013. Electronic filers shall also attach a copy of their proposed jury instructions to an e-mail, which 6 the party shall send to: awiorders@caed.uscourts.gov. All proposed jury instructions shall be in duplicate. One set shall indicate the party proposing 7 8 the instruction, with each instruction numbered or lettered, shall cite supporting authority, and shall 9 include the customary “Given, Given as Modified, or Refused,” showing the court’s action with regard 10 to each instruction. The other set shall be an exact copy of the first set, but shall be a “clean” copy that 11 does not contain the identification of the offering party, instruction number or letter, supporting 12 authority, or reference to the court’s disposition of the proposed instruction. The parties are ordered to confer after the trial confirmation hearing to determine which 13 14 instructions they agree should be given. As soon as possible thereafter, the parties shall submit a list 15 of joint, unopposed instructions. As to those instructions to which the parties dispute, the court will 16 conduct its jury instruction conference during trial at a convenient time. 17 S. Proposed Verdict Form 18 The parties shall file and serve a proposed verdict form by 4:00 p.m. on Thursday, July 25, 19 2013. 20 T. Use Of Videotape and Computers 21 Any party wishing to use a videotape for any purpose during trial shall lodge a copy of the 22 videotape with the Courtroom Clerk by 4:00 p.m. on Thursday, July 25, 2013. If a written transcript 23 of audible words on the tape is available, the court requests that the transcript be lodged with the court, 24 solely for the aid of the court. 25 If counsel intends to use a laptop computer for presentation of evidence, they shall contact the 26 courtroom deputy clerk at least one week prior to trial. The courtroom deputy clerk will then arrange 27 a time for counsel to bring the laptop to the courtroom, and meet with a representative of the 28 Information and Technology Department and receive a brief training session on how counsel’s 36 1 equipment interacts with the court’s audio/visual equipment. If counsel intends to use PowerPoint, the 2 resolution should be set no higher than 1024 x 768 when preparing the presentation. 3 U. Morning Conferences During Trial 4 During the trial, it is the obligation of counsel to meet with the court each morning to advise 5 the court and opposing counsel as to what documents are proposed to be put into evidence that have 6 not previously been admitted by stipulation, court order, or otherwise ruled upon. The court will rule 7 on those documents, to the extent possible, prior to the commencement of trial each day out of the 8 presence of the jury. If the ruling depends upon the receipt of testimony, the court will rule as 9 requested upon the receipt of such testimony. 10 The court shall consider any other legal matter at morning conferences as well. The court does 11 not wish to recess the trial to hear legal argument outside of the presence of the jury, and proper 12 preparation by counsel will eliminate the need for that result. 13 V. Order Of Witnesses 14 In order to make the trial operate efficiently and smoothly, each counsel has the continuing 15 obligation to advise opposing counsel as to what witnesses he or she intends to call at each trial 16 session. 17 XX. Objections to Pretrial Order 18 Any party may, within ten (10) calendar days after the date of service of this Order, file and 19 serve written objections to any of the provisions of this Order. Such objections shall specify the 20 requested modifications, corrections, additions or deletions. 21 XXI. Rules of Conduct During Trial 22 A. General Rules 23 1. All participants in the trial shall conduct themselves in a civil manner. There shall be 24 no hostile interchanges between any of the participants. 25 2. 26 the court. 27 3. 28 All oral presentations shall be made from the podium, unless otherwise permitted by Sidebar conferences are discouraged. Legal arguments or discussion of issues outside the presence of the jury should be done during recesses. 37 1 4. Counsel shall advise their respective clients and witnesses not to discuss any aspect of 2 the case in the common areas of the courthouse accessible to the jurors, such as the lobby, the 3 elevators, the hallways and the cafeteria. 4 B. Jury Selection 5 1. The court will conduct voir dire to be supplemented by any written questions submitted 6 by counsel prior to trial and after the court has concluded its questioning of the jury panel. In some 7 circumstances, the court may allow brief direct questioning by counsel. 8 C. Opening Statements 9 1. Counsel may use visual aids in presenting the opening statement. However, any 10 proposed visual aids shall be shown to opposing counsel before opening statement. 11 D. Case in Chief 12 1. Counsel shall have his/her witnesses readily available to testify so that there are no 13 14 delays in the presentation of evidence to the trier of fact. 2. At the close of each trial day, counsel shall disclose his/her anticipated witnesses and 15 order of presentation for the next day, so that any scheduling or evidentiary issues may be raised at 16 that time. 17 E. Witnesses 18 1. Before approaching a witness, counsel shall secure leave of court to approach the 19 witness. 20 2. 21 opposing counsel. 22 F. Exhibits 23 1. All exhibits shall be marked and identified in accordance with the instructions in the 24 25 26 Before approaching a witness with a writing, counsel shall first show the writing to Pretrial Order. 2. An exhibit shall not be published to the jury until it has been admitted into evidence and counsel has secured leave of court to publish the exhibit. 27 28 38 3. 1 The court usually will conduct an on the record review of the exhibits that have been 2 admitted in evidence at the conclusion of each party’s case in chief and after each party has rested its 3 entire case. 4 G. Objections 5 1. No speaking objections or arguments are permitted in the presence of the jury. Counsel 6 shall state the specific legal ground(s) for the objection, and the court will rule based upon the 7 ground(s) stated. The court will permit counsel to argue the matter at the next recess. 2. 8 9 10 The court will not assume that any objection made also implies with it a motion to strike an answer that has been given. Therefore, counsel who has made an objection, and who also wishes to have an answer stricken, shall also specifically move to strike the answer. 11 H. Closing Argument 12 1. Counsel may use visual aids in presenting the closing argument. However, any 13 proposed visual aids shall be shown to opposing counsel before closing argument. 14 FAILURE TO COMPLY WITH ALL PROVISIONS OF THIS ORDER MAY BE 15 16 GROUNDS FOR THE IMPOSITION OF SANCTIONS, INCLUDING POSSIBLE DISMISSAL OF 17 THIS ACTION OR ENTRY OF DEFAULT, ON ANY AND ALL COUNSEL AS WELL AS ON 18 ANY PARTY WHO CAUSES NON-COMPLIANCE WITH THIS ORDER. 19 20 21 IT IS SO ORDERED. 22 Dated: June 18, 2013 23 24 SENIOR DISTRICT JUDGE DEAC_Signature-END: 0m8i788 25 26 27 28 39

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