Foster v. Enenmoh et al

Filing 121

ORDER Sustaining in Part and Overruling in Part Defendant's Objections to Pretrial Order 113 , 116 , signed by District Judge Lawrence J. O'Neill on 12/20/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL LOUIS FOSTER,
Plaintiff,

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v.

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A. ENENMOH,

ORDER SUSTAINING IN PART AND
OVERRULING IN PART DEFENDANT’S
OBJECTIONS TO PRETRIAL ORDER
(Docs. 113 and 116)

Defendant.

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Case No. 1:08-cv-01849-LJO-SKO PC

_____________________________________/

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17 I.

Order Addressing Defendant’s Objections to Pretrial Order

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Plaintiff Michael Louis Foster, a state prisoner proceeding pro se and in forma pauperis,

19 filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 3, 2008. This action is
20 proceeding on Plaintiff’s second amended complaint, filed on September 17, 2009, against
21 Defendant Enenmoh for violation of the Eighth Amendment of the United States Constitution.
22 Jury trial is currently set for February 4, 2014, and Defendant filed objections to the Pretrial Order
23 on December 16, 2013.
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A.

Objections to Plaintiff’s Proposed Undisputed Facts 5, 7, 9, 10, 11, 12, 14, 16,
and 17

Defendant’s objection to fact 5 is sustained and the fact is amended to: Within kidneys,
there are occasional findings of deposits commonly known as “stones” which contain calcium as
part of their chemical components. (Doc. 105, Pl. Pretrial Stmt., Enenmoh ROG 4, p. 32.)

Defendant’s objection to fact 9 is sustained and the fact is amended to: as Chief Medical

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2 Officer, Defendant routinely approved non-formulary drug requests where there was a medical
3 indication for doing so and the alternatives had been proven not to work. (Doc. 87-3, Enenmoh
4 Dec., p. 6, ¶22.)
Defendant’s objection to fact 11 is sustained and the fact will be moved to the disputed

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6 facts section.
Defendant’s remaining objections are overruled. The parties have not stipulated to any

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8 facts, and each party is required to support his position at trial with admissible evidence,
9 notwithstanding the proposed disputed facts set forth in the Pretrial Order. Defendant’s desire to
10 argue factual interpretation, add information, and/or lend context is not grounds for objection.1
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B.

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Defendant also objects to having his witnesses, other than Defendant, here by 9:30 a.m. on

Objection Regarding Defense Witnesses

13 the first day of trial. Plaintiff did not subpoena Dr. Barnett or Dr. Ugwueze for trial and therefore,
14 he does not have the right to have either witness present in the morning to call for his case-in15 chief. Defendant’s objection must therefore be sustained. As discussed during the hearing, the
16 Court will not recess to wait for witnesses to arrive and there is a possibility that jury trial may
17 conclude in one day. Therefore, any witnesses Defendant plans to call must be present and ready
18 to take the stand.
19 II.

Order

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As set forth herein, Defendant’s objections to the Pretrial Order are sustained in part and

21 overruled in part. An Amended Pretrial Order will be issued in due course.
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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

December 20, 2013

UNITED STATES DISTRICT JUDGE
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With respect to fact 7 in particular, Defendant is referred to document 87-2, page 8, where pelvic calcifications are in
fact noted in the medical record. To the extent Defendant seeks to argue the relevancy or irrelevancy of that notation,
or otherwise interpret the record, he may do so at trial.

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