Zavala v. Chrones et al
Filing
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ORDER Addressing Objections to Pretrial Order 127 ; ORDER GRANTING Defendant's Request to Modify Pretrial Order 130 , signed by Magistrate Judge Barbara A. McAuliffe on 2/4/13. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KEITH ZAVALA,
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CASE NO. 1:09-cv-01352-BAM
Plaintiff,
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ORDER ADDRESSING OBJECTIONS TO
PRETRIAL ORDER
(ECF No. 127)
v.
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ORDER GRANTING DEFENDANT’S
REQUEST TO MODIFY PRETRIAL ORDER
(ECF No. 130)
CHRIS CHRONES, et al.,
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Defendants.
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This action, brought pursuant to 42 U.S.C. § 1983 for violation of Plaintiff Keith Zavala’s
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rights under the United States Constitution, is proceeding against Defendants Chris Chrones, D.
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Smith, S. Kays, S. Chandler, J. Soto and C. Martin for failure to protect in violation of the Eighth
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Amendment. On January 9, 2013, the Court issued a pretrial order. Thereafter, on January 11, 2013,
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Defendants filed objections to the pretrial order and, on January 17, 2013, Defendants filed a request
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to modify the pretrial order. (ECF Nos. 128 and 130.)
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I.
Objections to Pretrial Order
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On January 11, 2013, Defendants filed objections to the pretrial order. In the objections,
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Defendants request that the Court amend statements in the “Undisputed Facts” section of the pretrial
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order and the Court add a defense exhibit.
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A.
“Undisputed Facts”
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Defendants first seek revision of the statement: “Following the ICC, Zavala was released to
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the general population.” (ECF No. 127 at 2:13.) Defendants indicate their position that Plaintiff was
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not released to the general population in Facility B. Instead, during the ICC hearing, Zavala denied
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being associated with the Southern Mexicans and further denied that he was in bad standing with the
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Southern Mexicans. Based on his claims, Zavala was released to the general population on walk-
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alone status with a note that he could be sent to a Security Housing Unit depending on the outcome
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of further disciplinary proceedings. Later that day, Zavala met with IGI Chavez and continued to
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deny that he had any safety concerns and that he was a Southern Mexican. Zavala was told to
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immediately report any safety concerns and he signed a document denying any safety concerns.
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(ECF No. 110 at 2:18-26.) In considering Defendants’ objection, the Court notes Plaintiff’s position
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is that the “ICC elected to release [him] from ASU to Facility B.” (ECF No. 106 at 8.) Given the
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apparent dispute, the pretrial order will be modified to indicate that Plaintiff was released to the
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general population.
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Second, Defendants seek revision of the statement: “After 30 days, Zavala was assigned
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greater privileges.” (ECF No. 127 at 2:16.) Defendants’ position is that “After 30 days, Zavala was
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released to the yard.” (ECF No. 110 at 3:1.) This position is consistent with Plaintiff’s statement
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that he was assessed “a loss of recreation yard for thirty days beginning on 06/22/07 ending on
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07/22/07. . . .” (ECF No. 106 at 9.) Accordingly, the pretrial order will be modified to indicate that
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Plaintiff was released to the yard.
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Third, and finally, Defendants seek the addition of an exhibit to the pretrial order. The
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exhibit is identified as “Investigative Report dated February 17, 2009” and was included in
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Defendants’ pretrial statement. (ECF No. 110 at 8:15.) This exhibit was omitted inadvertently from
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the pretrial order. The pretrial order will be corrected to reflect this exhibit.
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II.
Request to Modify Pretrial Order
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On January 17, 2013, Defendants filed a request to supplement the pretrial order to include
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an additional exhibit. The proposed exhibit consists of the housing bed/cell movement history for
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inmate Jesse Duran, P17745, at Kern Valley State Prison for the period of July 15, 2007, through
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January 1, 2008.
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Defendants seek addition of the exhibit as potential impeachment evidence. To that end,
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Defendants explain that, on December 17, 2012, the Court issued its order allowing Inmate Duran
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to testify at trial. Based on Inmate Duran’s submitted declaration, Defendants expect him to testify
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that (1) he personally had conversations with Defendant Martin about Plaintiff prior to the assault
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on Plaintiff; and (2) on or about and prior to September 15, 2007, on Facility B at Kern Valley State
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Prison, Defendant Martin told him that Plaintiff was a “rat” and “no good.” (ECF No. 108.)
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Defendants assert that the proposed exhibit indicates that Inmate Duran was housed in ASU1,
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Administrative Segregation Unit, only from December 7, 2007 through January 25, 2008. As
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Defendant Martin was assigned to ASU from 2007 through 2008, Defendants contend that his only
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contact with Inmate Duran would have occurred between December 7, 2007, through January 25,
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2008, which will impeach Inmate Duran’s expected testimony that he was in contact with Defendant
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Martin on or around and prior to the September 15, 2007 attack on Plaintiff. Declaration of Preeti
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K. Bajwa (“Bajwa Dec.”) ¶¶ 5, 7-10.
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Defendants contend that there is no risk of prejudice or surprise to Plaintiff because they have
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already asserted their position regarding Inmate Duran’s housing assignment in opposition to
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Plaintiff’s motion for the attendance of incarcerated witnesses. Bajwa Dec. ¶¶ 6, 11; ECF No. 111.
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Defendants further contend that they could not have anticipated including this exhibit at the time of
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filing their pretrial statement on November 26, 2012, because the Court did not issue its order
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allowing Inmate Duran to testify until December 17, 2012. Bajwa Dec. ¶ 12.
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The Court finds that the pretrial order should be modified to prevent “manifest injustice” to
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Defendant Martin. Fed. R. Civ. P. 16(e); Local Rule 281(b)(11). Therefore, Defendants’ request
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to modify the pretrial order is GRANTED and an amended pretrial order shall be issued.
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IT IS SO ORDERED.
Dated:
10c20k
February 4, 2013
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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