Harbridge v. Yates et al

Filing 163

PRETRIAL ORDER signed by District Judge Dale A. Drozd on 04/10/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER HARBRIDGE, 12 Plaintiff, 13 14 v. PRETRIAL ORDER Motion in Limine Deadline: April 18, 2017 HALL et al., 15 No. 1:10-cv-00473-DAD-JLT Motion in Limine Responses: April 25, 2017 Defendants. 16 Motion in Limine Hearing and Jury Trial: May 2, 2017, at 1:00 p.m., in Courtroom 5 17 18 Plaintiff Christopher Harbridge is a state prisoner proceeding pro se and in forma pauperis 19 20 in this civil rights action. Defendants Hall, Lee, and Tucker are represented by Deputy Attorney 21 General Diana Esquivel. Pursuant to Federal Rule of Civil Procedure 16(e), the court now issues 22 its final pretrial order. 23 I. SUMMARY Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 16, 2010. 24 25 This action is proceeding to trial on Claim 17, as stated in plaintiff’s second amended complaint, 26 against defendants Hall, Lee, and Tucker for deliberate indifference of his serious medical need in 27 ///// 28 ///// 1 1 violation of the Eighth Amendment.1 2 II. 3 JURISDICTION AND VENUE The court has subject matter jurisdiction over this federal civil rights action. 28 U.S.C. 4 § 1331. Venue is proper because the conduct allegedly occurred in this judicial district. 28 5 U.S.C. § 1391. 6 III. 7 TRIAL The parties demand a trial by jury. Fed. R. Civ. P. 38(b). The trial of this matter is 8 scheduled to commence at 1:00 p.m. on May 2, 2017, in Courtroom 5, before United States 9 District Judge Dale A. Drozd. 10 IV. FACTS 11 A. Undisputed Facts 12 1. Plaintiff is a prisoner in custody at the California Department of Corrections and 13 Rehabilitation (“CDCR”) and has been incarcerated at Pleasant Valley State Prison 14 (“PVSP”) since 2005. Plaintiff is serving a life sentence for his 1997 conviction 15 for second degree murder. 16 2. At all times relevant to this lawsuit, defendant Hall was a Licensed Vocational 17 Nurse at PVSP, defendant Lee was a Correctional Officer at PVSP, and defendant 18 Tucker was a Correctional Officer at PVSP. All defendants were acting under 19 color of state law. 20 ///// 21 ///// 22 1 23 24 25 26 27 28 On February 20, 2013, the court dismissed all but the following claims from the Second Amended Complaint: Claims 1, 9, 12, 13, 14, 16, 17, 18, 19, and 21. (See Doc. Nos. 28, 30.) On July 10, 2015, after determining that plaintiff failed provide sufficient information to locate certain defendants for service of summonses, the court dismissed defendants Ferro, Benyamin, and Dishman—and Claims 18, 19, and 21 against them—from the action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (See Doc. Nos. 99, 108.) On July 27, 2016, the court dismissed the following claims on defendants’ motion for summary judgment: Claims 1, 9, 12, 13, 14, and 16. (See Doc. Nos. 122, 128.) Accordingly, this action currently proceeds only on plaintiff’s Claim 17 against defendants Hall, Lee, and Tucker. Plaintiff recently filed a motion to revive Claims 18, 19, and 21, and for service of the complaint on defendants Ferro, Benyamin, and Dishman. (Doc. No. 147.) That motion will be separately addressed by the court. 2 1 3. 2 The incident giving rise to this claim occurred on the evening of May 2, 2006. a. Plaintiff had been released from administrative segregation to be 3 housed in Building 4, Facility A at PVSP. 4 b. At approximately 6:45 p.m., plaintiff was involved in a physical 5 altercation with a prospective cellmate in the dayroom of Building 6 4. Plaintiff was thereafter escorted out of the building. 7 c. Plaintiff later returned to Building 4. At around 8:54 p.m., plaintiff 8 assaulted another prospective cellmate. 9 d. During this second altercation, an officer struck plaintiff on the left 10 ankle and left thigh with an expandable baton to stop the assault. 11 e. After this second altercation, plaintiff was escorted to the Facility A 12 13 Program Office and placed in a holding cell. 4. 14 15 Defendants Hall, Lee, and Tucker, were not present during the physical altercation in Building 4. 5. That same evening, on May 2, 2006, at approximately 9:00 p.m., defendant Hall 16 evaluated plaintiff’s injuries in the Program Office and noted that plaintiff had a 17 swollen left ankle and a cut that was bleeding on his left thigh. 18 6. Defendant Hall retrieved a wheelchair for plaintiff. 19 7. Defendant Hall did not receive a call from anyone regarding plaintiff for the 20 21 remainder of his shift. 8. 22 23 Defendant Hall had no further interaction with plaintiff after May 2, 2006, nor was defendant Hall informed that plaintiff had required or requested medical care. 9. When plaintiff left the Program Office the night of May 2, 2006, he was sent to a 24 cell on the second floor of Building 1, Facility A, where defendants Lee and 25 Tucker were the second-watch floor officers from 6:00 a.m. to 2:00 p.m. 26 10. On May 4, 2006, plaintiff submitted a request for medical care. In addition to 27 requesting medication for other ailments, plaintiff also requested that his foot be x- 28 rayed because he could not walk. 3 1 11. On May 5, 2006, at or around 1:00 a.m., plaintiff was treated for his complaints of 2 ankle pain. Medical staff x-rayed plaintiff’s ankle and discovered a small distal 3 fracture. A cast was placed on plaintiff’s ankle that same day. 4 B. Disputed Factual Issues 5 1. Whether defendant Hall believed plaintiff’s ankle was possibly broken and 6 informed former defendants Herrera and McBride. 7 2. Whether defendant Hall knew plaintiff required medical treatment. 8 3. Whether defendant Hall refused to treat plaintiff’s injuries from May 2 to 4, 2006. 9 4. Whether plaintiff refused to go to the Treatment & Triage Area (“TTA”) and 10 instead insisted on going back to his cell and refused to provide any information 11 about his symptoms or injuries. 12 5. Whether defendant Hall called the nurse on duty in the TTA to seek advice on how 13 to proceed regarding plaintiff’s injuries and was advised to put ice on plaintiff’s 14 ankle, provide Motrin to control the pain and swelling, and that an x-ray would be 15 ordered for plaintiff the following morning. 16 6. 17 18 was uncooperative and refused treatment. 7. 19 20 Whether defendant Hall informed plaintiff that if he changed his mind, Hall would call the housing officers and send plaintiff to the TTA. 8. 21 22 Whether defendant Hall followed the nurse’s instructions and whether plaintiff Whether plaintiff requested assistance to get to his cell on the second floor and/or walked up the stairs on his own. 9. Whether defendants Lee and Tucker were aware that plaintiff had a serious 23 medical need, which they ignored while plaintiff was housed in Building 1 from 24 May 2 to 4, 2006. 25 10. 26 27 28 Whether defendant Lee failed to summon medical care for plaintiff’s broken ankle while housed in Building 1 from May 2 to 4, 2006. 11. Whether plaintiffs’ injuries (the laceration on his left thigh and distal fracture on his left ankle) amounted to a serious medical condition. 4 1 12. 2 Whether any defendant acted maliciously, oppressively, recklessly, or with evil intent from March 2 to 4, 2006. 3 13. Whether any of the defendants’ conduct on May 2 to 4, 2006 violated plaintiff’s 4 constitutional rights, and if so, would a reasonable prison official in defendants’ 5 position believe that their conduct was lawful or reasonable under the 6 circumstances. 7 C. 8 (1) 9 10 Disputed Evidentiary Issues2 1. Plaintiff’s Evidentiary Disputes Plaintiff objects to the introduction of the Interdisciplinary Progress Notes dated 5- 2-06 by defendant Hall on hearsay grounds and because the document was fabricated. 11 2. Plaintiff objects to introduction of the statement “Refused medical care until 12 requesting ER attention tonight” found in the “Encounter Form” dated 5-5-06 by R.N. Engbrecht 13 on hearsay grounds and because it is false. 14 15 3. Plaintiff objects to the testimony introduction of testimony of former defendants Benyamin and Ferro for the reasons stated in his motion in limine. 16 4. Plaintiff objects to the admittance of any testimony by the 10 expert witnesses 17 listed in defendants’ expert disclosures, or any other witnesses, pertaining to their “observation of 18 plaintiff’s behavior” for the reasons stated in plaintiff’s motion in limine. 19 20 5. Plaintiff reserves the right to raise objections to other evidence presented by defendants. 21 (2) 22 1. Defendants’ Evidentiary Disputes Defendants object to plaintiff testifying about the diagnosis and prognosis of his 23 left ankle injury and any residual effects of which he now complains. Defendants object that 24 plaintiff is not qualified to give testimony about the cause and effect, diagnosis, or prognosis of 25 his medical condition and that he is not qualified to interpret medical records. 26 27 28 2 The parties may file motions in limine, addressed in section XX(A)(1), and/or object to the introduction of evidence at trial. Any objections that the parties state are in their motions in limine, though duplicated here, will be ruled on at the hearing on motions in limine. 5 1 2. Defendants intend to file motions in limine to preclude plaintiff from testifying, 2 eliciting testimony, or introducing evidence of the following matters: (a) dismissed defendants 3 and claims and unrelated claims and individuals; (b) defendants’ involvement in other lawsuits, 4 incidents, or inmate appeals alleging denial of medical care or other misconduct; (c) plaintiff’s 5 theories that defendants and their counsel conspired to fabricate evidence; (d) reference to other 6 lawsuit suits, litigation, or court-orders involving defendants’ attorneys; (e) offers to compromise; 7 and (f) CDCR’s indemnification of an adverse judgment. 8 9 10 3. Defendants will file a motion in limine to exclude all witnesses listed in plaintiff’s pretrial statement absent an offer of proof that they have personal knowledge or relevant information about the events of May 2006. 11 4. Defendants will file a motion in limine to permit them to introduce evidence of 12 plaintiff’s and any incarcerated witness’s felony conviction and length of sentence for 13 impeachment purposes. 14 5. Defendants anticipate objecting to many of plaintiff’s proposed trial exhibits, and 15 will move to preclude plaintiff from using any document that was timely requested but not 16 produced during discovery. 17 18 6. Defendants reserve the right to file any other motion in limine as issues may arise during pretrial and trial proceedings. 19 D. 20 None. 21 V. Special Factual Information RELIEF SOUGHT 22 Plaintiff seeks “three billion dollars” in compensatory damages, “three billion dollars” in 23 punitive damages, court costs, trial costs, filing fees, attorney fees, and such further relief as the 24 court deems proper.3 25 26 27 28 Defendants seek judgment in this case and costs ///// 3 Plaintiff is not confined to seeking damages in the amount identified in his amended complaint. Fed. R. Civ. P. 54(c). 6 1 VI. POINTS OF LAW 2 A. 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 5 6 7 8 Section 1983 42 U.S.C. § 1983. Section 1983 provides a cause of action for the violation of plaintiff’s constitutional rights 9 by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 10 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 11 297 F.3d 930, 934 (9th Cir. 2002). To prevail on his inadequate medical care claim, plaintiff 12 must demonstrate a link between actions or omissions of defendant and the violation of his Eighth 13 Amendment rights; there is no respondeat superior liability under section 1983. Ashcroft v. 14 Iqbal, 556 U.S. 662, 676-77 (2009); Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 15 1062, 1074–75 (9th Cir. 2013); Moss v. U.S. Secret Service, 711 F.3d 941, 967–68 (9th Cir. 16 2013); Lacey v. Maricopa County, 693 F.3d 896, 915–16 (9th Cir. 2012) (en banc); Simmons v. 17 Navajo County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010). 18 B. 19 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 20 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 21 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 22 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 23 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 24 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 25 Cir.1997) (en banc)). 26 Deliberate Indifference to Serious Medical Needs To maintain an Eighth Amendment claim based on alleged inadequate medical care in 27 prison, a plaintiff must first “show a serious medical need by demonstrating that failure to treat a 28 prisoner=s condition could result in further significant injury or the unnecessary and wanton 7 1 infliction of pain. Second, the plaintiff must show the defendants= response to the need was 2 deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 3 439 F.3d at 1096 (quotation marks omitted)). As to the first prong, indications of a serious medical need “include the existence of an 4 5 injury that a reasonable doctor or patient would find important and worthy of comment or 6 treatment; the presence of a medical condition that significantly affects an individual’s daily 7 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 8 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 9 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). As to the second prong, deliberate indifference is “a state of mind more blameworthy than 10 11 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 12 safety.’” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 13 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 14 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 15 Id.at 847. In medical care cases, this requires showing: (a) a purposeful act or failure to respond 16 to a prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 17 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 18 substantial; however, such would provide additional support for the inmate’s claim that the 19 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 20 F.2d at 1060. 21 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 22 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 23 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 24 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 25 official should have been aware of the risk, but was not, then the official has not violated the 26 Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, 27 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 28 ///// 8 1 C. 2 “Qualified immunity shields government officials from civil damages liability unless the Qualified Immunity 3 official violated a statutory or constitutional right that was clearly established at the time of the 4 challenged conduct.” Taylor v. Barkes, --- U.S. ---, ---, 135 S. Ct. 2042, 2044 (2015) (quoting 5 Reichle v. Howards, 566 U. S. 658, ---, 132 S. Ct. 2088, 2093 (2012)). Qualified immunity 6 analysis requires two prongs of inquiry: “(1) whether ‘the facts alleged show the official’s 7 conduct violated a constitutional right; and (2) if so, whether the right was clearly established’ as 8 of the date of the involved events ‘in light of the specific context of the case.’” Tarabochia v. 9 Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) (quoting Robinson v. York, 566 F.3d 817, 821 (9th 10 Cir. 2009). These prongs need not be addressed in a particular order. Pearson v. Callahan, 555 11 U.S. 223 (2009). 12 To determine whether a government official should be granted qualified immunity, under 13 the first prong, the facts are to be viewed “in the light most favorable to the injured party.” 14 Chappell v. Mandeville, 706 F.3d 1052, 1058 (9th Cir. 2013) (quoting Saucier v. Katz, 533 U.S. 15 194, 201 (2001), overruled in part on other grounds by Pearson, 555 U.S. at 817-21; see also 16 Bryan v. MacPherson, 630 F.3d 805, 817 (9th Cir. 2010)). However, the existence of a material 17 factual dispute does not necessarily preclude a finding of qualified immunity. Estate of Ford v. 18 Ramirez-Palmer, 301 F.3d 1043, 1053 (9th Cir. 2002). 19 Under the second prong, clearly established law is not to be defined “at a high level of 20 generality.” White v. Pauly, --- S. Ct. ---, ---, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al- 21 Kidd, 563 U.S. 731, 742 (2011)); see also Mullenix v. Luna, --- U.S. ---, 136 S. Ct. 305, 308 22 (2015) (quoting al-Kidd, 563 U.S. at 742). “The dispositive question is ‘whether the violative 23 nature of particular conduct is clearly established.’” Ibid. (emphasis added in Mullinex). “This 24 inquiry ‘ “ ‘must be undertaken in light of the specific context of the case, not as a broad general 25 proposition.’ ” ’ ” Id., (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier 26 v. Katz, 533 U.S. 194, 201 (2001))). “[G]eneral statements of the law are not inherently incapable 27 of giving fair and clear warning” to officers, White, 137 S. Ct. at 552 (quoting United States v. 28 Lanier, 520 U.S. 259, 271 (1997)), but “in the light of pre-existing law the unlawfulness must be 9 1 apparent,” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The relevant inquiry 2 is whether existing precedent placed the conclusion that [the defendant] acted unreasonably in the 3 [specific circumstances confronted] ‘beyond debate.’ ” Mullenix, 136 S. Ct. at 309 (quoting al- 4 Kidd, 563 U.S. at 741). 5 “To be clearly established, a right must be sufficiently clear that every reasonable official 6 would have understood that what he is doing violates that right.” Reichel, 132 S. Ct. at 2092; see 7 also Castro v. County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016). “When properly 8 applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly 9 violate the law.” al-Kidd, 563 U.S. at 743 (citation and internal quotation marks omitted). “We 10 do not require a case directly on point, but existing precedent must have placed the statutory or 11 constitutional question beyond debate.” Id. at 741. “[A] ‘robust consensus of cases of persuasive 12 authority’ ” in the Courts of Appeals could establish the federal right [in question].” City and 13 County of San Francisco v. Sheehan, --- U. S. ---, ---, 135 S. Ct. 1765, 1778 (2015). 14 D. Punitive Damages 15 Plaintiff has the burden of proving what, if any, punitive damages should be awarded by a 16 preponderance of the evidence. Ninth Circuit Model Civil Jury Instructions § 5.5 (2007). In 17 order to award punitive damages, the jury must find that defendant’s conduct was “motivated by 18 evil motive or intent, or . . . involves reckless or callous indifference to the federally protected 19 rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1986). Acts or omissions which are malicious, 20 wanton, or oppressive support an award of punitive damages. Dang v. Cross, 422 F.3d 800, 807- 21 08 (9th Cir. 2005). 22 E. Federal Rules of Evidence 23 Federal Rules of Evidence 608 and 609 provide that evidence of a witness’s prior felony 24 conviction or instance of conduct demonstrating a propensity to lie may be used to impeach that 25 witness’s testimony.4 Federal Rule of Evidence 404(b) provides that evidence of prior crimes, 26 27 28 4 If a conviction is more than ten years old, defendant is required to comply with Federal Rule of Evidence 609(b) if he seeks to impeach plaintiff with his conviction. Simpson v. Thomas, 528 F.3d 685, 690-91 (9th Cir. 2008). 10 1 wrongs, or acts cannot be used to prove the character of the person in order to show conduct in 2 conformity with that character trait. Such prior acts may be admissible for other purposes only, 3 such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 4 mistake or accident. Id. 5 VII. ABANDONED ISSUES 6 The court previously granted summary judgment in favor of defendants Trimble, Brown, 7 Reeves, Munoz, Singleton, McBride, Collier, Redding, Franco, and Herrera on all claims against 8 them. (Doc. No. 128.) Consequently, these defendants have been dismissed from this action. 9 Other than this, the parties have not abandoned any issues. 10 VIII. 11 WITNESSES5 The following is a list of witnesses that the parties expect to call at trial, including rebuttal 12 and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS 13 SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR 14 UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT 15 “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(10). 16 A. Plaintiff’s Witness List6 17 1. Christopher Harbridge, plaintiff, (PVSP) (CDCR # K-61356) 18 2. D. Hall, defendant (may be contacted through his attorneys of record) 19 3. T. Lee, defendant (may be contacted through his attorneys of record) 20 4. W. Tucker, defendant (may be contacted through his attorneys of record) 21 It is noted that plaintiff identified inmate William Sutherland, CDCR #T-59697 in his 22 Pretrial Statement list of witnesses. (Doc. 145, p. 11.) However, plaintiff did not list Sutherland 23 in his motion for attendance of incarcerated witnesses. (Doc. 146.) Thus, plaintiff has failed to 24 make the requisite showing to obtain inmate Sutherland’s transport for appearance and may not 25 26 27 28 5 All parties will be allowed to call themselves and opposing parties as witnesses. 6 Plaintiff’s motion for attendance of incarcerated witnesses is denied by separate order of the court. 11 1 call him as a witness at the trial in this matter. 2 B. Defendant’s Witness List7 3 1. Christopher Harbridge, plaintiff, (PVSP) (CDCR # K-61356) 4 2. D. Hall, defendant (may be contacted through his attorneys of record) 5 3. T. Lee, defendant (may be contacted through his attorneys of record) 6 4. W. Tucker, defendant (may be contacted through his attorneys of record) 7 5. Sheree Engbrecht, R.N. (address previously provided with expert disclosures) 8 6. Nancy J. Harrod, R.N. (address previously provided with expert disclosures) 9 7. Richard T. Ferro, M.D. (address previously provided with expert disclosures) 10 8. Hani A. Benyamin, M.D. (address previously provided with expert disclosures) 11 9. Indravadan A. Dave, M.D. (address previously provided with expert disclosures) 12 10. Eric Leveque, D.O. (address previously provided with expert disclosures) 13 11. John N. Chokatos, M.D. (address previously provided with expert disclosures) 14 12. Jeffrey L. Tanji, M.D. (address previously provided with expert disclosures) 15 13. Custodian(s)8 of Records for Plaintiff’s central file and medical records with 16 CDCR (PVSP) 17 14. E. Redding Correctional Officer (PVSP) -- rebuttal only 18 15. E. McBride, Sergeant (PVSP) -- rebuttal only 19 IX. 20 EXHIBITS The following is a list of documents or other exhibits that the parties expect to offer at 21 trial. Plaintiff’s exhibits are presented as [Date (Author) Description]. NO EXHIBIT, OTHER 22 THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS THE 23 24 25 26 27 28 7 Defendant is not required to call all of the witnesses listed. However, as is the court’s general practice in civil rights actions brought by prisoner’s on their own behalf, witnesses the defense plans to call shall be present on the first day of trial and shall be available for plaintiff to call for direct examination in his case in chief. 8 Defendants represent that, although the custodians of records will be available to testify at trial, to avoid undue expense and absent any genuine dispute about the authenticity of the documents to be presented, defendants request that these witnesses be permitted to authenticate documents by their declarations. 12 1 PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE 2 MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 3 281(b)(11). 4 A. Plaintiff’s Exhibits 5 1. 5-2-06 (Hall) CDC 7230 Interdisciplinary Progress Notes 6 2. 5-2-06 (Hall) CDCR 7219 Medical Report of Injury or Unusual Occurrence, 7 8 Re/Harbridge 3. 9 5-2-06 (Long, MTA) CDCR 7219 Medical Report of Injury or Unusual Occurrence, Re/ I/M Gentry 10 4. 5-2-06 (Sgt. McBride) General Chrono, Order for Modified Program Status 11 5. 5-2-06 (C.O. Mendez) CDC 837-C, Crime / Incident Report 12 6. 5-3-06 (Lt. Herrera) CDC 837-A1, Page 2 of 6 13 7. 5-3-06 (Lt. Herrera) CDC 837-Al, Page 3 of 5 14 8. 5-4-06 (Harbridge) CDC 7362, Health care Services Request Form 15 9. 5-5-06 (R.N. Engbrecht) Encounter Form: Miscellaneous / Multiple Systems 16 Complaints 17 10. 5-5-06 (R.N. Engbrecht) CDC 7221, Physician’s Orders 18 11. 5-5-06 (Lt. Corely) CDC 114-D, Administrative Segregation Unit Placement 19 Notice 20 12. 5-8-06 (Dr. Benyamin) CDC 7221, Physician’s Orders 21 13. 5-9-06 (Dr. Leveque) University Medical Center, Department of Medical Imaging 22 14. 5-9-06 (R.N. Moore) University Medical Centers, Nursing Assessment Record, 2 23 Pages 24 15. 5-9-06 (Unknown) University Medical Center, Emergency Physician Record 25 16. 5-9-06 (Dr. Benyamin) CDCR 7230, Interdisciplinary Progress Notes 26 17. 5-9-06 (Dr. Benyamin) CDC 7221, Physician’s Orders 27 18. 5-10-06 (L.V.N. Dishman) CDC 7221, Physician’s Orders 28 19. 5-15-06 (C/O Redding) CDC 115, Rules Violation Report 13 1 20. 5-16-06 (Unknown) CDC 7254, Outpatient Interdisciplinary Progress Notes 2 21. 6-27-06 (Unknown) CDCR 7230, Interdisciplinary Progress Notes 3 22. 6-27-06 (Unknown) CDC 7221, Physician’s Orders 4 23. 6-27-06 (Unknown) CDC 7254, Outpatient Interdisciplinary Progress Notes 5 24. 6-27-06 (Dr. Deguchi) Radiology Report 6 25. 6-28-06 (Harbridge) CDC 7362, Health Care Services Request Form 7 26. 7-3-06 (Unknown) CDC 7254, Outpatient Interdisciplinary Progress Notes 8 27. 7-11-06 (Medical Staff) Receipt for Copies of Unit Health Record Information 9 28. 7-25-06 (Dr. Benyamin) Outpatient Interdisciplinary Progress Notes 10 29. 7-25-06 (Dr. Benyamin) CDC 7243, Health Care Services Physician Request for 11 Services 12 30. 8-9-06 (Harbridge) CDC 7362, Health Care Services Request Form 13 31. 9-5-06 (Unknown) CDC 7410, Comprehensive Accommodation Chrono 14 32. 9-5-06 (R.N. Coleman) CDC 7221, Physician’s Orders 15 33. 9-5-06 (R.N. Coleman) CDC 7254, Outpatient Interdisciplinary Progress Notes 16 34. 10-19-06 (Unknown) CDC 7410, Comprehensive Accommodation Chrono 17 35. 10-19-06 (Unknown) CDC 7221, Physician’s Orders 18 36. 10-19-06 (Unknown) CDC 7254, Outpatient Interdisciplinary Progress Notes 19 37. 11-5-06 (Harbridge) Letter to UMN or Scheduling Nurse 20 38. 11-6-06 (Harbridge) CDC 7362, Health Care Services Request Form 21 39. 12-5-06 (Dr. Castillo) CDC 7410, Comprehensive Accommodation Chrono 22 40. 12-5-06 (Dr. Castillo) CDC 7221, Physician’s Orders 23 41. 12-5-06 (Dr. Castillo) CDC 7254, Outpatient Interdisciplinary Progress Notes 24 42. 2-16-07 (Dr. Tamji) Letter recommending MRI, 2 Pages 25 43. 1-2-08 (Dr. Vilaysane) CDC 7410, Comprehensive Accommodation Chrono 26 44. 4-3-14 (Dr. Chokatos) CDC 7243, Physician Request for Services 27 45. 5-6-14 (Dr. Kristal) CDC 7230, Interdisciplinary Progress Note Specialty Clinic 28 46. 5-6-14 (Dr. Kristal) CDC-128C, Accommodation Chrono 14 1 47. 2 5-6-14 (Unknown) CDC 240-B, Inmate Authorization To Pay for Eye Glasses, Prosthesis, Artificial Appliances 3 48. 5-6-14 (Unknown) CDC 7230, Medical Equipment/Supplies Receipt 4 49. Unknown (Unknown) Interim CDC Form #XXX, Problem List 5 50. 5-1-13 (Susan Mendoca) Declaration of Case Records Supervisor 6 51. 5-18-13 (Alma Vieyra) Declaration of Custodian of Records 7 52. Dec. 2003 (CDC) Chapter 16, Health Care Services Manual, 2 Pages 8 53. Dec. 2003 (CDC) Chapter 18, Health Care Services Manual 9 54. Jan. 2012 (PVSP) Operations Procedure #9, Prosthesis, Medical Equipment and 10 11 Appliances, 4 Pages 55. 12 13 Apr. 2005 (PVSP) Operations Procedure #64, Use of Force Review Procedures, 7 Pages 56. 14 May 2006 (PVSP) Operations Procedure #123, Medical Evaluation of Inmates Involved in Assaults, . . . Or Use of Force, 2 Pages 15 57. 5-29-06 (Harbridge) CDC 602, #06-01738, 7 Pages 16 58. 8-29-06 (Harbridge) CDC 602, 4 Pages 17 59. 10-6-06 (Harbridge) CDC 602, 8 Pages 18 60. 11-3-06 (Harbridge) CDC 602, #07-00137, 11 Pages 19 61. 4-30-15 (Hall) Declaration 20 62. 4-29-15 (C/O Lee) Declaration 21 63. 4-30-15 (Sgt. McBride) Declaration 22 64. 4-30-15 (Lt. Herrera) Declaration 23 65. 2-14-14 (Harbridge) Deposition Transcripts, Pages 152-206 24 66. Apr. 2014 (Harbridge) Errata Sheet 25 B. Defendant’s Exhibits 26 1. Plaintiff’s Inmate Movement History at PVSP 27 2. Rules Violation Report Log No. 06/FA-05-009 28 3. Crime/Incident Report (CDCR 837) Log No. PVP-FAP-06-05-0235 15 1 4. Order for Modified Program Status, General Chrono (CDC 128-B), May 2, 2006 2 5. Inmate/Parolee Appeal Log No. PVSP-06-1738 (through all levels) 3 6. Inmate/Parolee Appeal Log No. PVSP-07-0137 (through all levels) 4 7. Plaintiff’s Relevant CDCR Medical Records from May to December 2005, 5 including but not limited to: 6 a. Hall’s Medical Report of Injury or Unusual Occurrence (CDC 7219), May 2, 7 2006 8 b. Hall’s Interdisciplinary Notes, May 2, 2006 9 c. Plaintiff’s Health Care Services Request Form (CDC 7362), May 4, 2006 10 d. Engbrecht’s Encounter Form, May 5, 2006 11 e. Engbrecht’s Physician’s Orders, May 5, 2006 12 f. Harrod’s and Benyamin’s Interdisciplinary Progress Notes, May 5, 2006 13 g. Ferro’s Outpatient Interdisciplinary Progress Notes, May 5, 2006 14 h. Benyamin’s Health Care Services Physician’s Request for Services (X-rays), 15 May 5, 2006 i. Benyamin’s Health Care Services Physician’s Request for Services (Sports 16 17 Medicine), May 5, 2006 18 j. Benyamin’s Interdisciplinary Progress Notes, May 9, 2006 (3:00 p.m.) 19 k. Benyamin’s Interdisciplinary Progress Notes, May 9, 2006 (6:18 p.m.) 20 l. Benyamin’s Health Care Services Physician’s Request for Services, May 9, 21 2006 22 8. 23 Plaintiff’s medical records from Community Regional/University Medical Center for May to June 2006 24 9. Abstract of Judgment for plaintiff’s committed offense 25 10. Declaration of Custodian of Records of plaintiff’s central file records with CDCR 26 11. Declaration of Custodian of Records of plaintiff’s medical file records with CDCR 27 ///// 28 ///// 16 1 X. 2 DISCOVERY DOCUMENTS TO BE USED AT TRIAL Plaintiff does not intend to offer at trial any answers to interrogatories, or responses to 3 requests for admissions. Plaintiff does intend to offer at trial pages 152 to 206 of the transcripts 4 from his deposition taken February 14, 2014, and the errata sheet pertaining to his deposition. Defendants might use plaintiff’s deposition transcript, taken on February 14, 2014, and his 5 6 responses to interrogatories and admissions requests at trial for impeachment purposes. 7 XI. 8 9 FURTHER DISCOVERY OR MOTIONS None. XII. STIPULATIONS 10 Plaintiff proposes stipulating to the facts he listed as undisputed in his pretrial statement. 11 Defendants are willing to stipulate to the authenticity of plaintiff’s unaltered records from 12 his central and medical files maintained by CDCR and any CDCR record generated and 13 maintained in the regular course of business, which may be used as exhibits at trial. Defendants 14 reserve the right to object to such exhibits on other grounds. 15 XIII. 16 AMENDMENTS/DISMISSALS Plaintiff requests permission to serve former defendants Benyamin and Ferro and to 17 reinstate Claims 19 and 21 as described in his motion in limine. (Doc. 145, p. 15.) To the extent 18 plaintiff raises this request in his motions in limine, it will be addressed on the first day of trial. 19 However, plaintiff also raised this issue in a motion (Doc. 147) he filed concurrently with his 20 pretrial statement, which will be addressed by separate order of the court. 21 22 Defendants indicate that there are no amendments/dismissals. XIV. SETTLEMENT NEGOTIATIONS 23 An unsuccessful settlement conference was conducted by United States Magistrate Judge 24 Stanley A. Boone. No additional settlement conference would appear likely to lead to resolution 25 of this action and, therefore, none will be set. 26 XV. 27 28 AGREED STATEMENT Plaintiff is willing to stipulate to the facts that he lists as undisputed in his pretrial statement. In light of that position, defendants do not believe an agreed statement of facts is 17 1 feasible. 2 XVI. SEPARATE TRIAL OF ISSUES 3 4 Plaintiff requests a hearing to determine whether a written statement by R.N. Sheree Engbrecht is based on her personal knowledge or hearsay.9 5 Defendants request bifurcation on the issue of the amount of punitive damages in the 6 event the jury finds any defendant acted with malice, oppression, or in reckless disregard of 7 plaintiff’s constitutional rights. 8 XVII. IMPARTIAL EXPERTS – LIMITATION OF EXPERTS10 Plaintiff requests the Court appoint “an impartial medical expert witness who is a 9 10 podiatrist.” (Doc. No. 145, p. 16.) 11 While the Court has the discretion to appoint an expert and to apportion costs, including 12 the apportionment of costs to one side, Federal Rule of Evidence 706; Ford ex rel. Ford v. Long 13 Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker v. American Home 14 Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), where the cost would 15 likely be apportioned to the government, the Court should exercise caution. The Court=s docket is 16 comprised of an overwhelming number of civil rights cases filed by prisoners proceeding pro se 17 and in forma pauperis, and the facts of this case are no more extraordinary and the legal issues 18 involved no more complex than those found in the majority of the cases now pending before the 19 Court. Wilds v. Gines, No. C 08-03348 CW (PR), 2011 WL 737616, at *4 (N.D. Cal. Feb. 23, 20 2011); Honeycutt v. Snider, No. 3:11-cv-00393-RJC (WGC), 2011 WL 6301429, at *1 (D. Nev. 21 Dec. 16, 2011) (AThe appointment of experts in deliberate indifference cases is rare, and such 22 requests should be granted sparingly, particularly given the large volume of cases in which 23 indigent prisoners allege claims under the Eighth Amendment related to medical care, and the 24 substantial expense defendants may have to bear if courts were to appoint experts in such cases.@) 25 9 26 27 28 Plaintiff indicates that he raised this in his first motion in limine which will be ruled on the first day of trial. 10 Plaintiff notes that his first motion in limine requests that defendants be limited to calling only one medical expert. As indicated above, all motions in limine will be ruled on the first day of trial. 18 1 Moreover, the appointment of an expert witness under Rule 706 is intended to benefit the 2 trier of fact, not a particular litigant, and here, the medical care issue is not of such complexity 3 that the court requires the assistance of a neutral expert at the summary judgment stage. 4 Faletogo, 2013 WL 524037, at *2; Bontemps v. Lee, No. 2:12-cv-0771 KJN P, 2013 WL 417790, 5 at *3-4 (E.D. Cal. Jan. 31, 2013); Honeycutt, 2011 WL 6301429, at *1; Wilds, 2011 WL 737616, 6 at *4; Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL 2228427, at *1 (E.D. Cal. Jun. 3, 7 2010). 8 9 Plaintiff provides no basis for appointment of an expert under Rule 706 and the Court finds none. Therefore, plaintiff’s request for the Court to appoint a podiatric medical expert is 10 denied. 11 XVIII. ATTORNEY’S FEES 12 13 None. XIX. TRIAL EXHIBITS 14 15 Neither side anticipates at this time that there will be a need for any special handling of trial exhibits. 16 17 Defense counsel SHALL retain the exhibits pending any appeal in this action. XX. 18 TRIAL PROTECTIVE ORDER Neither side intends to seek a protective order. Defendants do not believe one is 19 necessary as no confidential information will be disclosed during trial. 20 XXI. MISCELLANEOUS 21 A. 22 Further Trial Preparation 1. 23 Motions In Limine11 a. Briefing Schedule 24 Any party may file a motion in limine, which is a procedural mechanism to limit in 25 advance testimony or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111 26 (9th Cir. 2009) (quotation marks omitted). In the case of a jury trial, the court’s ruling gives 27 28 11 Plaintiff’s first motion in limine (Doc. No. 148) filed March 2, 2017 is currently pending before the court. 19 1 plaintiff and defendant’s counsel advance notice of the scope of certain evidence so that 2 admissibility is settled before attempted use of the evidence before the jury. Id. at 1111-12 3 (quotation marks omitted). 4 Any motion in limine must be served on the other party, and filed with the court by April 5 18, 2017. Any motion in limine must clearly identify the nature of the evidence that the moving 6 party seeks to prohibit the other side from offering at trial. 7 8 Any opposition to a motion in limine must be served on the other party, and filed with the court by April 25, 2017. 9 Motions in limine will be heard on the morning of the first day of trial. 10 The court does not favor the filing of motions in limine addressing evidentiary issues that 11 may not actually arise at trial. Moreover, motions in limine often cannot be ruled upon until other 12 evidence has been admitted at trial and the context for the evidence in question is established. 13 Accordingly, whether or not a party files a motion in limine, that party may still object to 14 the introduction of evidence during the trial. 15 2. 16 a. 17 18 Other Trial Briefs The parties are relieved of their obligation under Local Rule 285 to file a trial brief. If the parties wish to submit a trial brief, they must do so on or before April 25, 2017. 19 b. 20 Verdict Form The court will prepare the verdict form, which the parties will have the opportunity to 21 review on the morning of trial. If the parties wish to submit a proposed verdict form, they must 22 do so on or before April 25, 2017. 23 c. 24 Jury Instructions The court will prepare the jury instructions, which the parties will have the opportunity to 25 review on the morning of trial. Defendant shall file proposed jury instructions as provided in 26 Local Rule 163 on or before April 25, 2017. Plaintiff is not required to file proposed jury 27 instructions but if he wishes to do so, he must file them on or before April 25, 2017. 28 ///// 20 1 The parties shall use Ninth Circuit Model Civil Jury Instructions to the extent possible. 2 Otherwise, BAJI or CACI instructions may be used where the subject of the instruction is covered 3 by BAJI or CACI. All instructions shall be short, concise, understandable, and neutral and 4 accurate statements of the law. Argumentative or formula instructions will not be given and must 5 not be submitted. Quotations from legal authorities without reference to the issues at hand are 6 unacceptable. 7 The parties shall, by italics or underlining, designate any modification of instructions from 8 statutory or case authority, or any pattern or form instruction, such as the Ninth Circuit Model 9 Jury Instructions, BAJI, CACI, or any other source of pattern instructions. The parties must 10 specifically state the modification made to the original form instruction and the legal authority 11 supporting the modification. 12 The court will not accept a mere list of numbers of form instructions from the Ninth 13 Circuit Model Jury Instructions, CACI, BAJI, or other instruction forms. The proposed jury 14 instructions must be in the form and sequence which the parties desire to be given to the jury. All 15 blanks to form instructions must be completed. Irrelevant or unnecessary portions of form 16 instructions must be omitted. 17 All jury instructions shall indicate the party submitting the instruction (e.g., plaintiff or 18 defendant), the number of the proposed instruction in sequence, a brief title for the instruction 19 describing the subject matter, the text of the instruction, and the legal authority supporting the 20 instruction. Defendant shall provide the court with a copy as well as a clean copy (without 21 number, title or authority) of his proposed jury instructions via e-mail at: 22 dadorders@caed.uscourts.gov. 23 24 25 26 27 28 d. Proposed Voir Dire Proposed voir dire questions, if any, shall be filed on or before April 25, 2017, pursuant to Local Rule 162.1. e. Statement of the Case The parties may serve and file a non-argumentative, brief statement of the case which is suitable for reading to the jury at the outset of jury selection on or before April 25, 2017. The 21 1 court will consider the parties’ statements but will draft its own statement. The parties will be 2 provided with the opportunity to review the court’s prepared statement on the morning of trial. 3 4 f. Trial Exhibits The original and two copies of all trial exhibits, along with exhibit lists, shall be submitted 5 to Courtroom Deputy Renee Gaumnitz no later than April 25, 2017. Plaintiff’s exhibits shall be 6 pre-marked with the prefix “PX” and numbered sequentially beginning with 100 (e.g., PX-100, 7 PX-101, etc.). Defendant’s exhibits shall be pre-marked with the prefix “DX” and numbered 8 sequentially beginning with 200 (e.g., DX-200, DX-201, etc.). 9 The parties are required to meet and confer, by telephone or other means, to agree 10 upon and identify their joint exhibits, if any. Joint exhibits shall be pre-marked with the prefix 11 “JT” and numbered sequentially beginning with 1 (e.g., JT-1, JT-2, etc.), and defendant’s counsel 12 shall submit the original and two copies of the joint trial exhibits, with exhibit lists, no later than 13 April 25, 2017. 14 XXI. ESTIMATED TIME OF TRIAL/TRIAL DATE 15 Jury trial is set for May 2, 2017 at 1:00 p.m. in Courtroom 5 before the Honorable Dale A. 16 Drozd. Trial is anticipated to last for two to three days. The parties are directed to Judge Drozd’s 17 standard procedures available on his webpage on the court’s website. 18 Counsel are to call Renee Gaumnitz, courtroom deputy, at (559) 499-5652, one week prior 19 to ascertain the status of the trial date. 20 XXII. OBJECTIONS TO PRETRIAL ORDER 21 Written objections to the pretrial order, if any, must be filed on or before seven (7) days 22 after the date this order issues. Such objections shall specify the requested modifications, 23 corrections, additions or deletions. 24 XXIII. COMPLIANCE WITH PRETRIAL ORDER 25 Compliance with this order and its explicit requirements is mandatory. The court will 26 strictly enforce the requirements of this pretrial order, and counsel and parties are subject to 27 sanctions for failure to fully comply with this order and its requirements. The court will modify 28 the pretrial order “only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). The court 22 1 admonishes the parties and counsel to obey the Federal Rules of Civil Procedure and the court’s 2 Local Rules and orders. Failure to do so will subject the parties and/or counsel to sanctions as the 3 court deems appropriate. 4 IT IS SO ORDERED. 5 6 Dated: April 10, 2017 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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