Branch v. Grannis, et al.,

Filing 265

PRETRIAL ORDER signed by Magistrate Judge Stanley A. Boone on 12/07/2016. Motions in Limine Hearing set for 1/17/2017 at 2:00 p.m.; Jury Trial set for 1/30/2017 at 8:30 a.m., Courtroom 9.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

Case No. 1:08-cv-01655-SAB (PC)

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PRETRIAL ORDER

Plaintiff,
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Motion in Limine Deadlines:
Filing:
December 27, 2016
Response: January 9, 2017
Hearing: January 17, 2017, at 2:00 p.m.
in Courtroom 9

v.
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D. UMPHENOUR, L. SZALAI, and J.
ALVAREZ,

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Defendants.
Trial Date:
January 30, 2017, at 8:30 a.m. in
Courtroom 9 (SAB) (2-3 days)

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This Court conducted a telephonic pretrial conference on December 5, 2016. Plaintiff

22 Louis Branch appeared pro se, and Christina Gruenberg appeared on behalf of Defendants D.
23 Umphenour, L. Szalai, and J. Alvarez.

This action is proceeding against Defendants

24 Umphenour, Szalai, and Alvarez for failure to protect Plaintiff in violation of the Eighth
25 Amendment and against Defendant Umphenour for retaliation in violation of the First
26 Amendment. Pursuant to Federal Rule of Civil Procedure 16(e) and Local Rule 283, the Court
27 issues this final pretrial order.
28 / / /

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I.

JURISDICTION AND VENUE

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This Court has jurisdiction and venue is proper. This Court has original jurisdiction

3 under 28 U.S.C. §§ 1331, 1334. Venue is proper because a substantial part of the events or
4 omissions on which the claim is based occurred in this District.
5

On July 14, 2016, Plaintiff filed a motion to disqualify the undersigned. (ECF No. 216.)

6 On July 21, 2016, an order issued denying Plaintiff’s request for disqualification finding that
7 Plaintiff provided no basis for disqualification other than his disagreement with rulings made by
8 the assigned magistrate judge which does not demonstrate bias against him or favoritism toward
9 Defendants. (ECF No. 218.)
10

In his pretrial statement, Plaintiff disputes the Court’s jurisdiction contending that he

11 seeks disqualification of the undersigned for “ ‘judicial usurpation of power’; willful abuses of
12 judicial discretion; and manifest injustice.” (ECF No. 259 at 1.) Motions to disqualify or recuse
13 a judge fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C. § 455. Section 144
14 provides for recusal where a party files a timely and sufficient affidavit averring that the judge
15 before whom the matter is pending has a personal bias or prejudice either against the party or in
16 favor of an adverse party, and setting forth the facts and reasons for such belief. See 28 U.S.C. §
17 144. Similarly, section 455 requires a judge to “disqualify himself in any proceeding in which
18 his impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), or in other specified
19 circumstances, 28 U.S.C. §455(b).
20

A judge finding a section 144 motion timely and the affidavits legally sufficient must

21 proceed no further and another judge must be assigned to hear the matter. 28 U.S.C. § 144;
22 United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Where the affidavit is not legally
23 sufficient, however, the judge at whom the motion is directed may determine the matter. Sibla,
24 624 F.2d at 868 (holding judge challenged under § 144 properly heard and denied motion where
25 affidavit not legally sufficient). An affidavit filed pursuant to § 144 “is not legally sufficient
26 unless it specifically alleges facts that fairly support the contention that the judge exhibits bias or
27 prejudice directed toward a party that stems from an extrajudicial source.” Id. at 868 (citation
28 omitted).

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Under section 455 a motion to recuse must be decided by, the very judge whose

2 impartiality is being questioned.” Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). “Section
3 455 clearly contemplates that decisions with respect to disqualification should be made by the
4 judge sitting in the case, and not by another judge.” Id. (quoting United States v. Balistrieri, 779
5 F.2d 1191, 1202 (7th Cir. 1985).
6

Under both recusal statutes, the determination for disqualification is “whether a

7 reasonable person with knowledge of all the facts would conclude that the judge’s impartiality
8 might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d at 1043 (quoting United States
9 v. Hernandez, 109 F.3d 1450, 14534 (9th Cir. 1997). For instance, a judge “shall” disqualify
10 himself “[w]here he has a personal bias or prejudice concerning a party. . . .” 28 U.S.C. §
11 455(b)(1). However, the bias must arise from an extrajudicial source and cannot be based solely
12 on information gained in the course of the proceedings. United States v. Hernandez, 109 F.3d at
13 1453 (citing Liteky v. United States, 510 U.S. 540, 554-556 (1994). “Judicial rulings alone
14 almost never constitute a valid basis for a bias or partiality motion.” In re Focus Media, Inc., 378
15 F.3d 916, 930 (9th Cir. 2004) (quoting Liteky, 510 U.S. at 555).
16

In this instance, Plaintiff has not provided an affidavit and does not allege that recusal is

17 required due to bias. Plaintiff seeks recusal based upon his conclusory allegations of “ ‘judicial
18 usurpation of power’; willful abuses of judicial discretion; and manifest injustice.” The Court
19 has considered the reasons set forth in section 455 which would require recusal and finds no
20 basis upon which recusal would be required in this matter. The Court thereby denies Plaintiff’s
21 motion for recusal.
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II.

TRIAL

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Trial will begin on January 30, 2017, at 8:30 a.m. before United States Magistrate

24 Judge Stanley A. Boone in Courtroom 9 (SAB). The trial will be trial by jury. The parties
25 estimate the trial will take 2 to 3 days. Trial will consist of a jury of eight jurors with each side
26 having three peremptory strikes.
27 / / /
28 / / /

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III.

FACTS AND EVIDENTIARY ISSUES

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A.

Undisputed Facts
The following facts are undisputed:

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1.

Plaintiff is a convicted felon, serving a life sentence.

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2.

Plaintiff was housed at Avenal State Prison (“ASP”) from May to August 2004.

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3.

Defendants Umphenour, Szalai, and Alverez, were all employed at ASP in 2004.1

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4.

On July 11, 2004, Defendants Umphenour, Szalai and Alvarez were working third

8 watch (2:30 p.m. to 10:30 p.m.) in Housing Unit 250 in Facility II at ASP.
5.

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At approximately 4:25 p.m., Sergeant Wicks was informed that Plaintiff was

10 attempting to purchase a weapon from another inmate on the Facility II Yard.
6.

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Upon Sergeant Wick’s request, Defendant Umphenour paged Plaintiff over the

12 public address system and asked him to report to the podium.
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7.

Plaintiff approached the podium with blood running down the side of his face.

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8.

During a search of the area, Sergeant Wicks found an inmate manufactured

15 weapon in a trash can located on the “A” side of Housing Unit 250. Sergeant Wicks did not
16 believe that this weapon was the weapon utilized on Plaintiff because the inmate manufactured
17 weapon was flat metal stock, whereas the wounds sustained by Plaintiff appeared to have come
18 from a round object.
9.

Plaintiff was hospitalized and eventually placed in the Administrative Segregation

10.

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Sergeant R. Wicks discovered an inmate manufactured weapon capable of

20 Unit.
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22 inflicting a mortal wound in a trash can adjacent to the dormitory Plaintiff was housed in.
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Plaintiff contends that the following facts are undisputed:2

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1.

In May 2003, ASP officials and J. Mejia, California Department of Corrections

25 and Rehabilitation (“CDCR”) Headquarters Classification Services Representative, machinated
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1

Defendants’ undisputed fact states the year as 2011, however based upon the timing of the event at issue, the Court

27 assumes that this is a typographical error.
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2

The parties’ undisputed facts which the other party has indicated are in dispute are set forth separately.

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1 Plaintiff’s placement in Soledad Prison with Plaintiff’s documented enemy gang member.
2

2.

Plaintiff, accurately predicted to Soledad Psychologist, B. Gammard how, when

3 and where Soledad Officials would wantonly expose Plaintiff to a substantial risk of serious
4 harm from his documented enemy gang member.
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3.

As Plaintiff predicted, prison officials orchestrated a confrontation between

6 Plaintiff and his enemy gang member in the Central Infirmary.
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4.

Plaintiff eschewed a physical altercation.

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5.

Plaintiff’s habeas corpus petition to the Monterey Superior Court resulted in an

9 order which compelled Plaintiff’s November 2003 placement in Folsom Prison.
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6.

Folsom Captain O. Acuna granted Plaintiff’s request for a placement

11 recommendation to Vacaville or San Quentin.
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7.

However, Folsom Counselor J. Elison forged Acuna’s signature and confederated

13 with the same J. Mejia from CDCR Headquarters to inappropriately deny Plaintiff’s placement in
14 Vacaville or San Quentin.
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8.

Plaintiff and his mother filed citizen complaints against Elison’s fraudulent

16 machinations with J. Mejia.
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9.

Elison arranged for Plaintiff’s May 2004 placement at ASP in a clear violation of

18 the Director’s placement protocols.
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In fear for his safety and life at ASP, Plaintiff declined to exit his cell to board the

20 transportation bus to ASP.
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However, Folsom officials forcibly removed Plaintiff from his cell and

22 transported him to ASP.
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12.

ASP’s Facility 2 Initial Classification Hearing agreed that Plaintiff’s placement at

24 ASP was inappropriate and referred Plaintiff's cause to the Warden’s Classification
25 Representative for remedial action for the violation of the Director’s protocols.
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13.

In June 2004, at ASP, Plaintiff submitted a sworn Declaration to Warden S.

27 Powers attesting to have witnessed Officer Dunn assault and batter prisoner Hawkins without
28 legitimate cause.

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14.

Several days later, Plaintiff and Defendant Umpbenour had a confrontation.

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15.

Defendant Umpbenour’s answer did not raise an affirmative defense regarding the

3 undisputed confrontation.
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16.

Defendant Umpbenour alleged he issued a chronological report (chrono) against

5 plaintiff for possession and use of tobacco as the reason for the undisputed confrontation.
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17.

Plaintiff alleged Defendant Umpbenour threatened that Plaintiff would be, “Dealt

7 with!!” for submitting a “false” declaration to Warden S. Powers.
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18.

Defendant Umpbenour’s alleged chrono has not been produced/disclosed and two

9 comprehensive searches of Plaintiff’s case records by Solano Prison Counselor B. Davis has
10 failed to discover Defendant Umpbenour’s chrono.
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19.

Immediately after the undisputed confrontation Plaintiff was rehoused six times in

12 three weeks from Housing Units (HU) and from Facility 2 to Facility 4 and back to Facility 2.
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20.

Facility captains arranged the transfers and were fully cognizant of Plaintiff’s

14 “case factors”.
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21.

On July 10, 2004, Plaintiff was rehoused from the Facility 2 Gymnasium to HU

16 250 where Defendants were assigned to supervise.
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22.

On July 11, 2004, at 1545 hours, Plaintiff admonished the Facility 2 Lieutenant

18 and Sergeant of experiencing escalating tension from HU 250 inmates and requested to be
19 rehoused to the gym.
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23.

The Facility 2 Lieutenant granted Plaintiff’s request and notified HU 250 officer,

21 Defendant Umphenour that Plaintiff would be rehoused to the Facility 2 gym after the 1645
22 institutional count.
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24.

On July 11, 2004, at 1615-1620 hours, on the HU 250 main dayroom floor and

24 during the supervision of Defendants Alvarez, Szalai, and Omphenour, Plaintiff was repeatedly
25 stabbed, beaten and bludgeoned about the head by HU 250 inmates in an attempted murder.
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25.

During the attempted murder: electronic alarms were not activated; whistles were

27 not blown; radios did not transmit an alarm; and no orders were given to the inmate assailants to
28 desist.

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26.

The inmate assailants were not apprehended, identified nor held accountable for

2 their attempted murder of Plaintiff.
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27.

Defendant Umphenour gathered, inventoried, and packed Plaintiff’s personal

4 property in boxes he sealed with tape.
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28.

Plaintiff was inappropriately ordered placed in Mule Creek Prison.

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29.

Mule Creek officials documented that when they unsealed the personal property

7 Defendant Umphenour had packed and sealed, they discovered Plaintiff's property had been
8 “sabotaged”.
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30.

Mule Creek Counselor B.·Heise obtained the 07/11/2004 incident report log ASP

10 FA2 04 07 0160 of the attempted murder from ASP.
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31.

In January 2005 Mule Creek officials machinated an approval for Plaintiff’s

12 return placement to ASP.
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32.

Office of Internal Affairs Special Agent Laura Woods arrived at Mule Creek and

14 opened a formal investigation of the 07/11/2004 attempted murder of Plaintiff at ASP.
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33.

Special Agent Woods caused the approved return placement of Plaintiff at ASP to

16 be rescinded.
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34.

On 07/07/2008, Plaintiff filed the 42 USC § 1983 complaint alleging the Avenal

18 Warden, Chief of Inmate Appeals, Chief of Classification Services, Correctional Officers
19 Alvarez, Szalai and Umphenour were partisans to a policy &.custom of retaliation that violated
20 Plaintiff’s First, Eighth and Fourteenth Amendments of the Federal Constitution.
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35.

The Court established June 21, 2014 as the cut-off date for the parties to conduct

22 discovery.
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36.

However, in August 2014, counsel for Defendants submitted a sworn affidavit

24 attesting to have “discovered” two 07/11/2004 chronos containing the affirmative defense of
25 Alvarez and Szalai.
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37.

Defendants’ dilatory affirmative defense chronos claimed that during the

27 attempted murder of Plaintiff: Defendant Umphenour (sworn summary judgment affidavit) was
28 patrolling the opposite side of HU 250; Defendant Alvarez was exiting the staff restroom; and

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1 Defendant Szalai was in the office preparing the institutional count.
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38.

Defendants’ affirmative defenses were not raised in their answers (Docs. 107 &

39.

Additionally,

3 116).
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Defendants’

affirmative

defense

claims

were

not

5 contemporaneously documented in accordance with CDCR mandated policy in the Dept.
6 Operations Manual, Chapter 5, Adult Custody and Security Operations, Article 3. Incident
7 Report §§51030.1-51030.6.1.
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40.

Further, Defendants Alvarez and Szalai did not sign their dilatory affirmative

9 defense chronos.
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41.

Moreover, Defendants Alvarez and Szalai fail and refuse to identify the alleged

11 prison official whose signature is affixed to their dilatory affirmative defense chronos.
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42.

Defendants Alvarez, Szalai, and Umphenour did not disclose the information

13 contained in their 07/11/2004 affirmative defense chronos before their counsel’s alleged
14 “discovery” of that information in Plaintiff’s case records.
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43.

Most importantly, the information contained in Defendants’ affirmative defense

16 claims are absolutely novel within the whole of CDCR operations, procedures and protocols and
17 have not been previously disclosed to nor corroborated by any CDCR official.
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44.

Defendants’ exhaustion of administrative remedies affirmative defense remedies

19 in their motion for summary judgment is based on fraud, perjury and subornation of perjury.
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45.

At Soledad Prison it was discovered that Plaintiff had been exposed to a

21 substantial risk of serious harm by the surreptitious placement of his documented enemy gang
22 member in the prison’s general population.
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46.

Plaintiff’s enemy was providentially apprehended, housed in segregation and

24 subsequently placed in another prison.
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47.

Plaintiff has been repeatedly exposed to substantial risks of serious harm by

26 CDCR Classification Services.
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28 / / /

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Defendant contends that the following facts are undisputed:

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1.

Around 4:30 p.m., Sergeant Wicks called Defendant Umphenour and informed

3 him that he was looking for an inmate on Facility II who was attempting to buy a weapon from
4 another inmate. Defendant Umphenour returned to the officer’s podium after receiving the call.
5

2.

Sergeant Wicks instructed Correctional Officer Landeros to handcuff, pat search,

6 and escort Plaintiff to the Facility II Program Office because he suspected that Plaintiff may have
7 been involved in a fight.
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B.

Disputed Facts

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The following facts are disputed:

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Plaintiff submits the following facts are disputed:

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1.

Premise -.tobacco contraband vs. reprisal threat - for undisputed confrontation

12 between Defendant Umphenour and Plaintiff.
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2.

Notice (PC §2079) to Warden re: Plaintiff’s safety concerns.

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3.

Failure to process staff complaint re: Officer Perez.

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4.

Incident Report re: 2004 Avenal Facility 4 Sex Offender Murder.

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5.

Cognizance by Defendants for the attempted murder of Plaintiff.

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6.

Defendants machination of the attempted murder of Plaintiff.

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7.

Assailants were Defendants’ inmate gang member agents.

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8.

Integrity of Defendants’ alibi chronological reports.

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9.

Lieutenant Marmelejo’s land line call informing Defendant Umphenour of

21 Plaintiff’s transfer placement to the gymnasium housing unit upon clearance of the institutional
22 count.
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10.

Sergeant Wick’s alleged “tight” observation.

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11.

Pervasive knowledge among the inmate general population of the identity of

25 Plaintiff’s assailants.
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12.

Defendant Umphenour’s expropriation, distribution and “sabotage” of Plaintiff’s

27 personal property.
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13.

Allegation that Plaintiff attempted to purchase an inmate manufactured weapon.

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14.

1

Allegation that Plaintiff was attacked for attempting to purchase an inmate

2 manufactured weapon.
15.

3

Sergeant Wick’s land line call to Defendant Umphenour admonishing Defendant

4 Umphenour that Wicks had information of weapon purchase.
16.

5

Inappropriate 2004 placement at ASP from Folsom Prison in violation of CDCR

6 protocols.
17.

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Identity of the alleged prison officials whose signature is affixed to Defendants

8 Alvarez and Szalai’s July 11, 2004 alibi chronological reports.
Defendant submits the following facts are disputed:

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1.

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Whether Defendant Umphenour was aware of any declaration that Plaintiff

11 allegedly submitted in support of another inmate’s grievance.
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2.

Whether Defendant Umphenour called Plaintiff a “baby rapist” or a “snitch.”3

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3.

Whether Plaintiff was assaulted in full view of Defendants, and whether

14 Defendants failed to intervene.
4.

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Whether Defendants were aware of the assault on Plaintiff before Sergeant Wicks

16 instructed Defendant Umphenour to summon Plaintiff to the officer’s podium using the public
17 address system.
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5.

What injuries Plaintiff sustained from the incident, if any.

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C.

Disputed Evidentiary Issues

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The following evidentiary issues are disputed:

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Plaintiff submits the following disputed evidentiary issues:

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1.

Defendants’ testimony to any alleged factual information and/or evidence not

23 recorded in the officially mandated crime/incident report - motion in limine.
2.

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Holographic display of the crime scene located in ASP Facility 2, Housing Unit

25 250’s Main Dayroom Floor.
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3

During the pretrial conference, Plaintiff stipulated that he has never alleged that Defendant Umphenour made such

27 statements. Plaintiff expressed concern that he would suffer prejudice should Defendants attempt to admit such

statements during the course of the trial. To the extent that Plaintiff seeks to preclude such statements on the basis

28 of undue prejudice, this would be properly raised in a motion in limine.
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3.

Plaintiff’s criminal history - motion in limine.

2

4.

Plaintiff’s disciplinary history - motion in limine.

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5.

Defendants’ exhaustion of administrative remedies exhibits in support of their 138

4 motion for summary judgment is prima facie evidence of spoliation, fraud, perjury, and
5 subornation of perjury.
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Defendant submits the following disputed evidentiary issues:

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Currently, Defendants do not know precisely which evidence Plaintiff intends to rely on

8 at trial because he has not yet filed his Pretrial Statement.4 Defendants thus reserve the right to
9 object to Plaintiff’s evidence following receipt of his exhibit list and/or at trial.
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IV.

SPECIAL FACTUAL INFORMATION

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Plaintiff submits the following as special factual information:

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Date, place and general nature of the incident

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See Undisputed Facts - 4:21-28; 5:1-7.

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See Disputed Factual Issues - 7:1-28; 7A:1--3.
Particular acts, omissions or conditions - basis for liability

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See Above

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Statute, Ordinance or Regulation Violated

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See Undisputed Facts - Pages 2 through 6A.

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See Disputed Evidentiary Issues – “a.” & “e.”
Government Code

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§ 19572 (d) Inexcusable Neglect of Duty, (f) Dishonesty,

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(t) Failure of Good Behavior
Penal Code

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§115 Offering False or Forged Instruments for Filing

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§118 False Affidavits as to Affiant’s Testimony

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4

During the pretrial conference, Plaintiff expressed concern regarding a statement in Defendants’ pretrial statement

27 that Defendants had not received his pretrial statement. Defendants asserted that they have now received Plaintiff’s
pretrial statement. The Court notes that the pretrial statement was docketed on the ECF system on November 29,

28 2016 as having been received on November 28, 2016.

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§118 Perjury

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§127 Subornation of Perjury

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§132 Offering False Evidence

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§134 Preparing False Evidence

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§139 Retaliatory Threats ·

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§140 Use of Retaliatory Force

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§146 Seizure of Property

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§147 Willful Inhumanity and Oppression of Prisoner

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11

Department Operations Manual
§51030.4.1 Incident/Crime Report
Federal Rules of Civil Procedure

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8(c) Claims of Privilege

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26(b)(5) Discovery Responses

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26(g) Discovery Responses

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33(b)(4) Interrogatory Answers and Responses

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37(a)(3) Evasive Answer or Responses

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37(c)(1) False or Misleading Disclosure

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37(c)(2) Refusal to Admit

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56( e) Use of Affidavits

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56(g) “Bad Faith” Affidavits

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Federal Rules of Evidence

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802 Hearsay Rule

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803(6)(7)(8) Hearsay Without Exception

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901(a) Authentication

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902(11) Self-Authentication

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Plaintiff's Age: 70 years

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Injuries sustained: Stabbed, Beaten, Bludgeoned, Emotional, Mental and Physical Pain

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Prior conditioned worsened: Depression and Emotional Pain

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1

Future Medical: Mental Health Treatment and Consultation

2

Property Damage: $600 plus

3

General Damages: Compensatory

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Punitive Damages: Yes

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V.

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Plaintiff is seeking damages for discovery misconduct sanctions; compensation for

RELIEF SOUGHT

7 litigation costs and labor; damages for physical, emotional and mental pain and anguish;
8 damages for “reprehensible” conduct of recklessness, malice and deceit; and property damage.
Defendants contend that Plaintiff is not an attorney, and is therefore not entitled to

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10 attorney’s fees. As Plaintiff is not entitled to attorney’s fees under 42 U.S.C. §1988, and
11 Defendants as government employees are not entitled to fees either, attorney’s fees are not at
12 issue here.
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VI.

POINTS OF LAW5

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A.

Liability Under the 42 U.S.C. § 1983

15

“Section 1983 creates a private right of action against individuals who, acting under color

16 of state law, violate federal constitutional or statutory rights.” Tatum v. Moody, 768 F.3d 806,
17 814 (9th Cir. 2014), cert. denied, 135 S. Ct. 2312 (2015). “Section 1983 is not itself a source of
18 substantive rights, but merely provides a method for vindicating federal rights elsewhere
19 conferred.” Tatum, 768 F.3d at 814 (citations omitted).
Under section 1983, a plaintiff must prove that (1) each defendant acted under color of

20

21 state law and (2) each defendant deprived him of rights secured by the Constitution or federal
22 law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). A person “subjects”
23 another to the deprivation of a constitutional right within the meaning of the statute if he does an
24 affirmative act, participates in another’s affirmative acts, or fails to perform an act which he is
25 legally required to do, that causes the claimed deprivation. Leer v. Murphy, 844 F.2d 628, 633
26 (9th Cir. 1988). There is no respondeat superior liability under section 1983, and therefore, each
27
5

Plaintiff objects to Defendants’ points of law. As this is an action is which the Plaintiff is proceeding pro se the

28 Court provides the points of law.

13

1 defendant is only liable for his or her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677
2 (2009). Plaintiff must demonstrate that each defendant personally participated in the deprivation
3 of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
4

B.

Failure to Protect in Violation of the Eighth Amendment

5

The treatment a prisoner receives in prison and the conditions under which the prisoner is

6 confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual
7 punishment. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.
8 Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981))
9 (quotation marks omitted).

The Eighth Amendment requires prison officials “[to] take

10 reasonable measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at 832 (internal
11 quotation marks omitted). This includes the duty to protect inmates from violence at the hands
12 of other prisoners. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016).
13

However, not every injury suffered by an inmate at the hands of another results in a

14 prison official’s liability for violation of the Eighth Amendment. Clem v. Lomeli, 566 F.3d
15 1177, 1181 (9th Cir. 2009). “The failure of prison officials to protect inmates from attacks by
16 other inmates may rise to the level of an Eighth Amendment violation when: (1) the deprivation
17 alleged is ‘objectively, sufficiently serious’ and (2) the prison officials had a ‘sufficiently
18 culpable state of mind,’ acting with deliberate indifference.” Hearns v. Terhune, 413 F.3d 1036,
19 1040 (9th Cir. 2005). “Deliberate indifference occurs when ‘the official acted or failed to act
20 despite his knowledge of a substantial risk of serious harm.’ ” Solis v. Cty. of Los Angeles, 514
21 F.3d 946, 957 (9th Cir. 2008) (quoting Farmer, 511 U.S. at 841). “Deliberate indifference entails
22 something more than mere negligence,” but it is “also clear that it is satisfied by something less
23 than acts or omissions for the very purpose of causing harm or with knowledge that harm will
24 result.” Farmer, 511 U.S. at 835.
25

C.

Retaliation in Violation of the First Amendment

26

A viable claim of First Amendment retaliation in the prison context requires evidence

27 that the prison official took some adverse action against an inmate because of that prisoner’s
28 protected conduct, that such action would chill a person of ordinary firmness from future First

14

1 Amendment activities, and that the action did not reasonably advance a legitimate correctional
2 goal. Rhodes v. Robinson, 408 F.3d 559, 567-69 (9th Cir. 2004); Watison v. Carter, 668 F.3d
3 1108, 1114 (9th Cir. 2012). “A retaliation claim may assert an injury no more tangible than a
4 chilling effect on First Amendment rights.” Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir.
5 2009) (citations omitted).
6

In order to prevail on his retaliation claim, a plaintiff must prove that his protected

7 conduct was “the ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct. Brodheim,
8 584 F.3d at 1271 (quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.
9 1989)); see also Hartman v. Moore, 547 U.S. 250, 259 (2006) (the plaintiff must show a causal
10 connection between the defendant’s retaliatory animus and the subsequent injury in any
11 retaliation action). The plaintiff also bears the burden of proving the absence of legitimate
12 correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806
13 (9th Cir. 1995).
14

D.

Punitive Damages

15

In order to recover punitive damages, the plaintiff has the burden of proving what, if any,

16 punitive damages should be awarded by a preponderance of the evidence. N INTH CIRCUIT
17 MODEL CIVIL JURY INSTRUCTIONS § 5.5 (2008). The jury must find that the defendants’ conduct
18 was “motivated by evil motive or intent, or . . . involves reckless or callous indifference to the
19 federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1986).
20

VII.

STIPULATIONS

21

Defendants do not anticipate any stipulations at this time but will attempt to meet and

22 confer with Plaintiff regarding potential stipulations.
23

VIII. AMENDMENTS/DISMISSALS

24

Plaintiff seeks to file a fourth amended complaint. On October 5, 2016, an order issued

25 denying Plaintiff’s request to file an amended pleading. To the extent that Plaintiff is seeking
26 reconsideration of that order, under Rule 60(b) of the Federal Rules of Civil Procedure, a district
27 court may grant relief from its previous orders in the following circumstances: “(1) mistake,
28 inadvertence, surprise, or excusable neglect; . . . or [¶] (6) any other reason that justifies relief.”

15

1 “A motion for reconsideration should not be granted, absent highly unusual circumstances,
2 unless the district court is presented with newly discovered evidence, committed clear error, or if
3 there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos
4 Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009) (internal quotations marks and citations
5 omitted). Moreover, “[a] party seeking reconsideration must show more than a disagreement
6 with the Court's decision, and recapitulation. . .” of that which was already considered by the
7 Court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131
8 (E.D.Cal.2001) (internal quotation marks and citation omitted).
9
10
11
12
13
14
15
16
17

Further, requests for reconsideration are also governed by Local Rule 230(j) which states:
Whenever any motion has been granted or denied in whole or in part, and a
subsequent motion for reconsideration is made upon the same or any alleged
different set of facts, counsel shall present to the Judge or Magistrate Judge to
whom such subsequent motion is made an affidavit or brief, as appropriate,
setting forth the material facts and circumstances surrounding each motion for
which reconsideration is sought, including:
(1) when and to what Judge or Magistrate Judge the prior motion was made;
(2) what ruling, decision, or order was made thereon;
(3) what new or different facts or circumstances are claimed to exist which did not
exist or were not shown upon such prior motion, or what other grounds exist for
the motion; and
(4) why the facts or circumstances were not shown at the time of the prior motion.
Plaintiff has set forth no grounds for the court to reconsider the order denying his motion

18 to file an amended complaint. Accordingly, Plaintiff’s motion to file an amended complaint is
19 denied.
20

No amendments are requested by Defendants.

21

IX.

22

There have been no settlement negotiations. Plaintiff has failed to make a settlement

SETTLEMENT NEGOTIATIONS

23 demand, and the mandatory settlement conference was vacated after Plaintiff stated that he
24 refused to attend the mandatory settlement conference in person.
25

Plaintiff objects to this statement on the ground that the settlement judge vacated the

26 settlement conference because it refused to conduct the conference in accordance with the Civil
27 Rights of Institutionalized Persons Act; and also Defendants did not make a settlement offer.
28 / / /

16

1

X.

AGREED STATEMENT

2

Presentation of all or part of this action upon an agreed statement of facts is unlikely,

3 given the factual disputes between the parties.
4

XI.

SEPARATE TRIAL OF ISSUES

5

Defendants request to bifurcate the issue of punitive damages, in order to avoid the

6 unnecessary and/or premature admission of evidence regarding Defendants’ net worth.
7 Additionally, there is only one incident at issue, so no other separate trial of issues is
8 recommended.
9

As is this Court’s standard practice, the Court will bifurcate the issue of punitive

10 damages. If the jury finds that any defendant is liable for punitive damages, the Court will
11 conduct a second phase of trial on the amount of punitive damages.
12

XII.

IMPARTIAL EXPERTS/LIMITATION OF EXPERTS

13

Plaintiff requests appointment of experts. The district court has the discretion to appoint

14 an expert pursuant to Rule 706(a) of the Federal Rules of Evidence, which reads, in part, “[t]he
15 court may on its own motion or on the motion of any party enter an order to show cause why
16 expert witnesses should not be appointed. . . .” Fed. R. Evid. 706(a); Walker v. American Home
17 Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Rule 706 also confers
18 on the court the discretion to apportion costs in the manner directed by the court, including the
19 apportionment of costs to one side. Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified
20 School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071.
21

Expert testimony is governed by Rule 702 of the Federal Rules of Evidence which

22 provides that an expert witness may testify if “the expert’s scientific, technical, or other
23 specialized knowledge will help the trier of fact to understand the evidence or to determine a fact
24 in issue.” Fed. R. Evid. 702(a). In this action, the trier of fact is being asked to determine if the
25 Defendants failed to protect Plaintiff from other inmates and if Defendant Umphenour retaliated
26 against Plaintiff. As evidenced from the pretrial statements of the parties, the factual issues to be
27 decided in this action will largely require credibility findings based on the testimony of the
28 individual witnesses. Given the claims that are proceeding to trial in this action, the Court does

17

1 not find, and Plaintiff has not identified, any evidence or fact in issue for which an expert
2 opinion would assist the jury in determining. Accordingly, Plaintiff’s request for appointment of
3 an expert witness is denied.
4

Defendants do not believe limitation of witnesses is needed.

5

XIII. PRE TRIAL FILING DEADLINES

6

A.

7

Any party may file a motion in limine, which is a procedural mechanism to limit in

Motions In Limine and Hearing:

8 advance testimony or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111
9 (9th Cir. 2009). In the case of a jury trial, the Court’s ruling gives Plaintiff and Defendants’
10 counsel advance notice of the scope of certain evidence so that admissibility is settled before
11 attempted use of the evidence before the jury. Id. at 1111-1112. Although the Federal Rules do
12 not explicitly provide for the filing of motions in limine, the Court has the inherent power to hear
13 and decide such motions as a function of its duty to expeditiously manage trials by eliminating
14 evidence that is clearly inadmissible for any purpose. Luce v. United States, 469 U.S. 38, 41 n.4
15 (1984).
16

This Court further orders the parties to file motions in limine only with respect to

17 important, critical issues. Motions in limine on abstract evidentiary issues or issues more
18 appropriately addressed by the Court on a case-by-case basis (such as a motion in limine to
19 exclude all irrelevant evidence) will be looked upon with disfavor.

After satisfying the

20 foregoing, if a motion in limine still seeks to address the admissibility of a particular trial exhibit,
21 the exhibit in question must be referenced by the trial exhibit number so that the court can review
22 the actual exhibit for admissibility. If the exhibit sought to be admitted would not be in the
23 court’s possession one week prior to the motion in limine hearing, then the exhibit in question
24 must be included in the motion. Failure to properly reference or attach an exhibit in the motion
25 will result in the request being denied.
26

The parties shall not file separate motions in limine for every issue presented to the

27 Court. Rather, each party may file one consolidated motion in limine which is subdivided into
28 separate sections for each issue setting for the legal authority and analysis. The responding party

18

1 shall file one opposition in response addressing each motion in limine issue in a separate section.
As set forth in the Trial Scheduling Order (ECF No. 215), the deadline for service and

2

3 filing of motions in limine is December 27, 2016. The deadline for service and filing of an
4 opposition, if any, is January 9, 2017. A telephonic motions in limine hearing will be held on
5 January 17, 2017, at 2:00 p.m. in Courtroom 9, before the undersigned.

Counsel for

6 Defendants is directed to arrange for telephone contact with Plaintiff and to contact the
7 Courtroom Deputy, Mamie Hernandez, at [phone], prior to the hearing date, to receive
8 instructions regarding the conference call. The parties are directed to the Court previous order
9 regarding the format and scope of the motion in limine and such motion and opposition shall
10 conform to those requirements.
11

B.

Trial Witnesses:

12

No later than January 13, 2017, each party shall file and serve a final witness list,

13 including the name of each witness and omitting witnesses listed in the joint pretrial statement
14 which the parties no longer intend to call. Only witnesses who are listed in this pretrial order
15 may appear on the final witness list. The parties may not call any witness that is not on the
16 final witness list unless (1) it is solely for impeachment or rebuttal purposes, (2) the parties’
17 stipulate, (3) additional witnesses are required in light of the Court’s ruling on a motion in
18 limine, or (4) it is necessary to prevent “manifest injustice.” Fed. R. Civ. P. 16(e); Local
19 Rule 281(b)(10).
During trial, the parties’ are obligated to provide the opposing party, by the close of the

20

21 prior business day, the names of the witnesses the party intends to call on the next trial day. If
22 evidentiary problems are anticipated, the parties’ shall immediately notify the Court that a
23 hearing will be required.
24

The following is a list of witnesses that the parties expect to call at trial:

25

1.

26
27

Plaintiff Anticipates Calling the Following Witnesses:6

6

The Court does not require Plaintiff to subpoena the defendants to call them as witnesses during his case in chief.
Defendants are required to appear during the trial to potentially be called as witnesses in this action.
During the December 5, 2016 pretrial conference, Plaintiff raised the issue of his inability to call witnesses

28 because he was unable to pay witness fees to bring his witnesses to the trial. The Court notes that Plaintiff was
19

1

a.

Plaintiff Louis Branch

2

b.

Inmate Hawkins, P 932767

3

c.

Inmate Torbor, K 48746

4

d.

Correctional Lieutenant Marmolejo

5

e.

Correctional Sergeant Wicks

6

f.

Correctional Sergeant Ecklin

7

g.

Warden Powers

8

h.

Internal Affairs Special Agent Woods

9

i.

Correctional Officer Dunn

10

j.

Correctional Captain Fuentes

11

k.

Correctional Captain Jones

12

l.

Inmate Appeals Chief Grannis

13

m.

Attorney Carbone

14

n.

Inspector General Barton

15

o.

Thompson - Expert

16

p.

Piller - Expert

17

q.

Hickman - Expert.

18
19 provided with deadlines to file motions for the attendance of incarcerated and non-incarcerated witnesses in the trial
scheduling order issued June 2, 2016. Plaintiff was required to file a motion for the attendance of incarcerated

20 witnesses on or before October 10, 2016. (ECF No. 215 at 6-7.) The order informed Plaintiff that he needed to file
21
22
23
24
25
26
27

a motion identifying the incarcerated witness and the motion must be accompanied by a declaration showing that the
requested witness has actual knowledge of facts relevant in this action. Plaintiff did not file a motion identifying
witnesses or including the required showing of knowledge of relevant information.
Further, Plaintiff was provided with the procedure to procure unincarcerated witnesses who refuse to testify
voluntarily. A motion was required to be filed by December 5, 2015. Plaintiff did not file a timely motion to obtain
the attendance of unincarcerated witnesses. Plaintiff asserted at the pretrial hearing that rather than filing a motion
to obtain witnesses he filed a request for appointment of counsel. To the extent that Plaintiff’s current request is
construed as a motion for waiver of the requirement that Plaintiff pay witness fees, the in forma pauperis statute, 28
U.S.C. § 1915, does not waive payment of fees or expenses for witnesses. Dixon v. Ylst, 990 F.2d 478, 480 (9th
Cir. 1993) (citing Tedder v. Odel, 890 F.2d 210, 211–12 (9th Cir.1989)). Plaintiff is not entitled to waiver of the
witness fees or expenses in this action. Further, Plaintiff has not submitted a motion for attendance of
unincarcerated witnesses, nor has he demonstrated that any of his requested witnesses have knowledge relevant in
this action. Plaintiff’s request to waive the witness fee requirement is denied.
7

Plaintiff did not submit a motion for the attendance of incarcerated witnesses requesting the attendance of

28 incarcerated witnesses at the trial of this matter.

20

1

r.

Hagar – Expert (Special Master)

2

s.

Hurdle –Expert (Ombudsman)

3

2.

Defendants Anticipate Calling the Following Witnesses:

4

a.

Defendant D. Umphenour
Represented by counsel

b.

Defendant L. Szalai
Represented by counsel

c.

Defendant J. Alvarez
Represented by counsel

d.

Sergeant R. Wicks
Avenal State Prison
#1 Kings Way
Avenal, CA 93204
[phone]

e.

Lieutenant M. Marmolejo
Avenal State Prison
#1 Kings Way
Avenal, CA 93204
[phone]

f.

Correctional Officer R. Landeros
Avenal State Prison
#1 Kings Way
Avenal, CA 93204
[phone]

g.

MTA R. Giebrecht
Avenal State Prison
#1 Kings Way
Avenal, CA 93204
[phone]

h.

Custodian of Records
Avenal Valley State Prison
#1 Kings Way
Avenal, CA 93204
[phone]

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

The parties are forewarned that every witness they intend to call must appear on
24

their own witness list. The mere fact that a witness appears on the opposing party’s

25
witness list is not a guarantee that the witness will be called at trial or otherwise be
26
available for questioning by other parties. Each party must undertake independent efforts
27
to secure the attendance of every witness they intend to call at trial.
28

21

1

C.

Exhibits

2

As noted below, no later than December 12, 2016, the parties shall exchange their final

3 exhibit list and pre-marked exhibits.
4

1.

Pre-Marked Exhibits:

5

All exhibits must be pre-marked with an exhibit sticker or other legible

6 numbering/lettering by the party who seeks to use it. If the individual exhibit includes multiple
7 pages and is not easily identified as to each page (i.e., Bates stamp numbering), then the exhibit
8 must be page numbered. This requirement that exhibits be pre-marked applies both to evidence
9 that will be formally admitted into evidence as well as any other exhibits that will be presented in
10 any manner during trial, such as “demonstrative” evidence. Each individual “original” exhibit
11 that will be submitted to the jury must be stapled/fastened so that the exhibit does not become
12 separated. Further, exhibits submitted to the jury must be pre-marked on the front page only in
13 the manner described above. Impeachment or rebuttal evidence need not be pre-marked.
14

a.

Joint Exhibits: Joint exhibits are those exhibits which all parties agree may be

15

admitted into evidence without the need for laying a proper foundation under the

16

Federal Rules of Evidence.

17

designation “J-[Number]” (e.g., J-1, J-2). Those exhibits may be introduced at

18

any time during the course of the trial.

19

otherwise on the record, joint exhibits are not “automatically” admitted into

20

evidence: at least one of the parties must admit a joint exhibit into evidence. If an

21

exhibit is not admitted by any party, the exhibit will not be given to the jury

22

despite its “joint” designation as an exhibit.

23

b.

Joint exhibits must be pre-marked with the

However, unless the parties agree

Plaintiff’s Exhibits: Plaintiff’s exhibits must be pre-marked using numbers

24

beginning with 1 (e.g., 1, 2, etc). The Plaintiff must pre-mark his exhibits before

25

they are provided to the Defendants.

26
27

c.

Defendants’ Exhibits: Defendants’ exhibits must be pre-marked using letters
beginning with A (e.g., A, B, C...AA, BB, CC...AAA, BBB, CCC, etc.).

28 / / /

22

1

2.

Exchange and Filing of Exhibits List and Exhibits

2

No later than December 12, 2016, the parties shall exchange their proposed exhibits.

3 Because Plaintiff is incarcerated, he shall submit his exhibits to the Litigation Coordinator at the
4 Institution where he is incarcerated, on or before the above-referenced deadline. The exhibits
5 exchanged shall be pre-marked by each party and correctly exhibited in the format described in
6 Part XIII.C.1, above.
Defendants are required to submit trial exhibits for both parties in binders. As noted

7

8 above, Defendants shall submit three (3) complete, legible and identical sets of exhibits in
9 binders on or about January 9, 2017. Within the binders, the pre-marked exhibits must be
10 separately tabbed and assembled in sequential order. The three complete binders shall be
11 delivered to Courtroom Clerk Mamie Hernandez for use (1) by the Court, (2) at the witness stand
12 for the witnesses, and 3) for the plaintiff at trial.8
13

3.

Exhibits

14

The following is a list of documents or other exhibits that the parties expect to offer at

15 trial. As set forth above, exhibits must be pre-marked. See discussion, supra, Part XIII.C.1. No
16 exhibit, other than those listed in this section, may be admitted unless the parties stipulate or
17 upon a showing that this order should be modified to prevent “manifest injustice.” Fed. R. Civ.
18 P. 16(e); Local Rule 281(b)(11).
19

a.

Plaintiff’s Exhibits

20

1.

11/26/2003 Inspector General Memo

21

2.

l/15/2003 Complaint #00160

22

3.

4/19/2003 Vendetta Memo-ASP Warden

23

4.

4/24/2003 Vendetta Memo-FBI

24

5.

4/15/2003 CSR Action

25

6.

7/14/2003 Chrono

26

7.

8/12/2003 Court Order

27
8

The Court notes this is a change from the June 2, 2016 trial scheduling order which only required two sets of

28 exhibits.

23

1

8.

11/14/2003 CSR Action

2

9.

3/15/2004 R. Branch Complaint

3

10.

3/24/2004 Complaint Receipt

4

11.

4/18/2004 Complaint Disposition

5

12.

4/12/2004 Mission Change Memo - Conversion

6

13.

4/15/2004 C. Carbone, Esq. Memo

7

14.

4/16/2004 CSR Action

8

15.

4/21/2004 Notice of Lost Appeal

9

16.

5/19/2004 ASP Initial Classification Chrono

10

17.

5/27/2004 Response re: C. Carbone

11

18.

5/26/2004 Allegation Response

12

19.

6/16/2004 Warden Declaration

13

20.

6/20/2004 Warden Declaration

14

21.

6/22/2004 Transfer Chrono

15

22.

7/02/2004 Transfer Chrono

16

23.

7/11/2004 Incident Report

17

24.

51030.4.1 DOM Incident Report

18

25.

8/04/2004 Complaint #02265

19

26.

8/6/2004 CSR Action

20

27.

8/18/2004 Property Appeal #02125

21

28.

10/13/2004 Hardship Dr. Letter

22

29.

1/21/2005 CSR Action

23

30.

2/7/2005 OIA Investigation

24

31.

2/8/2005 CSR Action

25

32.

7/19/07 Emergency Appeal #03042

26

33.

11/16/07 Safety Memo

27

34.

11/27/07 Safety Concerns Memo

28

35.

8/1/08 News Article - Policy & Custom

24

1

36.

8/8/08 News Article Code of Silence

2

37.

9/29/10 Surreptitious Enemy Placement

3

38.

10/2/15 Chrono Search

4

39.

12/17/2015 News Article

5

b.

Defendant’s Exhibits

6

1.

Photographs of “A” side of Housing Unit 250 in Facility II at Avenal State Prison

7

2.

Diagram of Housing Unit 250 in Facility II at Avenal State Prison

8

3.

Photographs of Plaintiff from July 11, 2004

9

4.

Plaintiff’s CDC 7219 Medical Report from July 11, 2004

10

5.

Photographs of inmate manufactured weapon found on July 11, 2004

11

6.

Plaintiff’s Inmate Appeal’s Tracking System printouts

12

7.

Plaintiff’s Appeal No. ASP-M-04-02265 (and responses)

13

8.

Plaintiff’s Appeal No. ASP-M-04-01272 (and responses)

14

If the parties intend to use copies of exhibits or evidence at trial, those copies must be

15 legible. The Court may, on its own motion, exclude illegible copies from evidence.
16

4.

Responses to Discovery Requests

17

The parties may admit responses to discovery requests9 into evidence. The parties shall

18 file and serve a list of all responses to discovery requests intended to be used at trial no later than
19 December 12, 2016. The list shall identify the responses to discovery requests by title and set
20 number.
If a party seeks to admit a physical copy of the discovery responses into evidence at trial,

21

22 the discovery responses must be pre-marked as an exhibit in the same manner discussed above.
23 See discussion, supra, Part XIII.C.1. Alternatively, if the party intends to read relevant portions
24 of the discovery responses into evidence, a copy of the discovery responses must be lodged with
25 the Court no later than January 23, 2017. The Court will address objections to discovery
26 responses as they arise during trial.
27
9

Responses to discovery requests include responses to depositions by written questions (Fed. R. Civ. P. 31),

28 interrogatories (Fed. R. Civ. P. 33) and requests for admissions (Fed. R. Civ. P. 36).
25

1

Even though discovery is closed, all parties are reminded of their continuing obligation to

2 update their prior discovery responses if they obtain new information or is otherwise made aware
3 that a prior discovery response is incomplete or incorrect. Fed. R. Civ. P. 26(e)(1).
4

If a party attempts to admit or use for any purpose evidence that (1) was not

5 previously disclosed during discovery and (2) should have been disclosed as an initial
6 disclosure under Rule 26(a) or as a supplemental disclosure under Rule 26(e), the Court
7 will prohibit that party from admitting or using for any purpose that evidence at trial,
8 unless the failure was substantially justified or was harmless. See Fed. R. Civ. P. 37(c)(1).
9
10

5.

Deposition Testimony

Deposition testimony shall be designated by page and line number, with such designation

11 to be filed and served no later than December 27, 2016. Any counter-designation as to the
12 same designation (also set out by page and line number) shall be filed and served no later than
13 January 17, 2017. The original certified transcript of any deposition identified in a designated
14 or counter-designation shall be lodged with the clerk,s office no later than December 27, 2016,
15 if not previously lodged with the Court.
16

If any party intends to admit relevant portions of deposition testimony into evidence, the

17 relevant deposition testimony must be pre-marked as an exhibit in the same manner discussed
18 above. See discussion, supra, Part XIII.C.1. However, any party may request that deposition
19 testimony offered for any purpose other than impeachment be presented in nontranscript form, if
20 available. See Fed. R. Civ. P. 32(c).
21

The Court will address objections to deposition testimony as they arise during trial.

22

6.

23

The Court respects the jury’s time and expects issues that must be presented outside the

Duty of the Parties’ Counsel

24 jury’s presence to be raised such that the jury’s service is not unnecessarily protracted. To the
25 extent possible, the parties shall raise issues that must be presented to the Court outside of the
26 jury’s presence (1) in the morning before the jury sits, (2) during breaks, (3) in the afternoon
27 after the jury is excused or (4) during any other appropriate time that does not inconvenience the
28 jury. For example, if evidentiary problems can be anticipated, the parties should raise the issue

26

1 with the Court before the jury sits so that there is no delay associated with specially excusing the
2 jury. Issues raised for the first time while the jury is sitting when the issue could have been
3 raised earlier will be looked upon with disfavor and counsel may be sanctioned for any fees,
4 costs or other expenses caused by their failure to raise the issue at a more convenient time.
5

7.

Post-Trial Exhibit Retention

6

Pursuant to Local Rule 138(f), the Court will order that custody of all exhibits be returned

7 to the defendants’ counsel after completion of the trial. The defendants’ counsel shall retrieve
8 the original exhibits from the courtroom deputy following the verdict in the case.

The

9 defendants’ counsel shall retain possession of and keep safe all exhibits until final judgment and
10 all appeals are exhausted or the time for filing an appeal has passed.
11

D.

Trial Briefs

12

Trial briefs are not required in this case. 10 However, if the parties chose the file a trial

13 brief, it shall be filed and served no later than January 23, 2017. The form and content of the
14 trial brief must comply with Local Rule 285. Special attention should be given in the trial brief
15 to address reasonably anticipated disputes concerning the substantive law, jury instructions
16 and/or admissibility of evidence. Local Rule 285(a)(3). The parties need not include in the trial
17 brief any issue that is adequately addressed in a motion in limine or in an opposition brief to a
18 motion in limine.
19

E.

Jury Instructions

20

The parties shall filed proposed jury instructions as provided in Local Rule 163 on or

21 before than January 13, 2017. The parties are only required to file proposed jury instructions
22 relating to the substantive law underlying this action. All proposed jury instructions shall (1)
23 indicate the party submitting the instruction (i.e., joint/agreed-on, Plaintiff’s or Defendant’s), (2)
24 be numbered sequentially, (3) include a brief title for the instruction describing the subject
25 matter, (4) include the text of the instruction, and (5) cite the legal authority supporting the
26 instruction. If the proposed jury instruction is based on the Ninth Circuit Model Jury Instructions,
27
28

10

The deadline set for trial briefs set in this order shall supersede the deadline set in Local Rule 285(a).

27

1 CACI, BAJI or other source of jury instructions, the proposed jury instruction shall also include
2 a citation to that specific instruction. All proposed jury instructions shall be e-mailed in Word®
3 format to [e-mail] no later than January 13, 2017. Jury Instructions will
4 not be given or used unless they are so e-mailed to the Court.
5

The Court will not accept a mere list of numbers associated with form instructions from

6 the Ninth Circuit Model Jury Instructions, CACI, BAJI or other source of jury instructions. The
7 proposed jury instructions must be in the form and sequence which the parties desire to be given
8 to the jury. Any blank fields in the form instructions must be filled-in before they are submitted
9 to the Court. Irrelevant or unnecessary portions of form instructions must be omitted.
10

Ninth Circuit Model Jury Instructions shall be used where the subject of the instruction is

11 covered by a model instruction. Otherwise CACI or BAJI instructions shall be used where the
12 subject of the instruction is covered by CACI or BAJI. All instructions shall be short, concise,
13 understandable, and consist of neutral and accurate statements of the law. Argumentative or
14 formula instructions will not be considered.
15

If any party proposes a jury instruction that departs from the language used in the Ninth

16 Circuit Model Jury Instructions, CACI, BAJI or other source of jury instructions, that party shall,
17 by italics or underlining, highlight the differences in language and must cite the legal authority
18 supporting the modification.
19

No later than January 23, 2017, the parties shall file and serve written objections to any

20 disputed jury instructions proposed by another party. All objections shall be in writing and (1)
21 shall set forth the proposed instruction objected to in its entirety, (2) shall specifically set forth
22 the objectionable matter in the proposed instruction, and (3) shall include a citation to legal
23 authority to explain the grounds for the objection and why the instruction is improper. A concise
24 argument concerning the instruction may be included. Where applicable, the objecting party shall
25 submit an alternative proposed instruction covering the subject or issue of law.
26

F.

Proposed Verdict Form

27

The Court will prepare the verdict form, which the parties will have the opportunity to

28 review on the morning of trial. If the parties wish to submit a proposed verdict form, they must

28

1 do so on or before January 13, 2017. Defense counsel’s proposed verdict form shall also be e2 mailed as a Word® attachment to [e-mail] no later than January 13, 2017.
3

G.

Proposed Jury Voir Dire

4

Proposed voir dire questions, if any, shall be filed on or before January 23, 2017,

5 pursuant to Local Rule 162.1(a). The parties each are limited to fifteen (15) minutes of jury voir
6 dire, unless this Court determines more time is warranted.
7

H.

Statement of the Case

8

The parties may serve and file a non-argumentative, brief statement of the case which is

9 suitable for reading to the jury at the outset of jury selection on or before January 23, 2017. The
10 Court will consider the parties’ statements but will draft its own statement. The parties will be
11 provided with the opportunity to review the Court’s prepared statement on the morning of trial.
12

XIV. ASSESSMENT OF JURY COSTS FOR FAILURE TO TIMELY NOTIFY

13 COURT OF SETTLEMENT
14

The parties must immediately notify the Court of any agreement reached by the parties

15 which resolves this litigation in whole or in part. Local Rule 160(a). The parties must advise the
16 Court of settlement immediately, but must do so no later than 4:30 p.m. (Pacific Time) on
17 January 27, 2017. If, for any reason attributable to counsel or parties, including settlement, the
18 Court is unable to commence a jury trial as scheduled when a panel of prospective jurors has
19 reported for voir dire, the Court may assess against counsel or parties responsible all or part of
20 the cost of the panel. Local Rule 272(b). Jury costs will include attendance fees, per diem,
21 mileage, and parking. If the parties request a continuance after the jury has been called, the
22 Court may assess jury costs as a condition for the continuance.
23

XV.

COMPLIANCE WITH THIS ORDER

24

Strict compliance with this order and its requirements is mandatory. This Court will

25 strictly enforce the requirements of this pretrial order, especially those pertaining to jury
26 instructions and verdict forms. Failure to comply with all provisions of this order may be
27 grounds for the imposition of sanctions, including possible dismissal of this action or entry of
28 default, on any all counsel as well as on any party who causes non-compliance with this order.

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1 This order shall be modified “only to prevent manifest injustice.” Fed. R. Civ. P. 16(e).
2

Moreover, this order supersedes the parties’ pretrial statement and controls the conduct of

3 further proceedings irrespective of any purported rights the parties claim to reserve in their
4 pretrial statement.
5

XVI. USE OF ELECTRONIC EQUIPMENT IN COURTROOM

6

Any party wishing to receive an overview or tutorial of the Court’s electronic equipment

7 must contact the Courtroom Deputy Clerk Mamie Hernandez at [phone] or
8 [e-mail] at least two (2) weeks before the start of trial in order to
9 schedule a tutorial session at a time convenient to the Court’s Information Technology staff. The
10 parties need to coordinate so everyone who is interested can attend the IT conference, the Court
11 will hold only one conference per case. The parties shall confer and advise the Courtroom
12 Deputy Clerk Mamie Hernandez of the date and time that has been agreed upon. The parties will
13 not be provided any training on the day of or during the course of the trial.
14

The electronic equipment and resources available for this trial may differ from the

15 equipment and resources available in other courtrooms and may even differ from the equipment
16 and resources available in this courtroom at another time. It is the responsibility of the parties to
17 familiarize themselves with the equipment and resources available for use in this trial prior to the
18 commencement of trial. If any party is unfamiliar with the equipment and resources available for
19 use in this trial, that party may be ordered to proceed without the aid of such equipment and
20 resources and/or may be sanctioned for any fees, costs or expenses associated with any delay.
21

Depending upon Court available equipment at the time of trial, the Plaintiff may be

22 provided with an electronic overheard projector at his trial table for purposes of showing
23 exhibited and admitted exhibits at trial. Accordingly, Plaintiff need not request that he allowed
24 to use electronic equipment as Plaintiff may be provided with electronic equipment if available.
25 / / /
26 / / /
27 / / /
28 / / /

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1

XVII. OBJECTIONS TO PRETRIAL ORDER

2

Any party may file and serve written objections to any of the provisions of this order on

3 or before December 20, 2016. Such objections shall specify the requested modifications,
4 corrections, additions or deletions.
5
6

IT IS SO ORDERED.

7 Dated:

December 7, 2016
UNITED STATES MAGISTRATE JUDGE

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