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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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHRISTOPHER HARBRIDGE,
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Plaintiff,
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v.
PRETRIAL ORDER
Motion in Limine Deadline: April 18, 2017
HALL et al.,
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No. 1:10-cv-00473-DAD-JLT
Motion in Limine Responses: April 25, 2017
Defendants.
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Motion in Limine Hearing and Jury Trial:
May 2, 2017, at 1:00 p.m., in Courtroom 5
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Plaintiff Christopher Harbridge is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action. Defendants Hall, Lee, and Tucker are represented by Deputy Attorney
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General Diana Esquivel. Pursuant to Federal Rule of Civil Procedure 16(e), the court now issues
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its final pretrial order.
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I.
SUMMARY
Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 16, 2010.
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This action is proceeding to trial on Claim 17, as stated in plaintiff’s second amended complaint,
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against defendants Hall, Lee, and Tucker for deliberate indifference of his serious medical need in
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violation of the Eighth Amendment.1
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II.
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JURISDICTION AND VENUE
The court has subject matter jurisdiction over this federal civil rights action. 28 U.S.C.
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§ 1331. Venue is proper because the conduct allegedly occurred in this judicial district. 28
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U.S.C. § 1391.
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III.
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TRIAL
The parties demand a trial by jury. Fed. R. Civ. P. 38(b). The trial of this matter is
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scheduled to commence at 1:00 p.m. on May 2, 2017, in Courtroom 5, before United States
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District Judge Dale A. Drozd.
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IV.
FACTS
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A.
Undisputed Facts
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1.
Plaintiff is a prisoner in custody at the California Department of Corrections and
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Rehabilitation (“CDCR”) and has been incarcerated at Pleasant Valley State Prison
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(“PVSP”) since 2005. Plaintiff is serving a life sentence for his 1997 conviction
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for second degree murder.
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2.
At all times relevant to this lawsuit, defendant Hall was a Licensed Vocational
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Nurse at PVSP, defendant Lee was a Correctional Officer at PVSP, and defendant
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Tucker was a Correctional Officer at PVSP. All defendants were acting under
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color of state law.
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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.
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3.
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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
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housed in Building 4, Facility A at PVSP.
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b. At approximately 6:45 p.m., plaintiff was involved in a physical
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altercation with a prospective cellmate in the dayroom of Building
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4. Plaintiff was thereafter escorted out of the building.
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c. Plaintiff later returned to Building 4. At around 8:54 p.m., plaintiff
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assaulted another prospective cellmate.
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d. During this second altercation, an officer struck plaintiff on the left
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ankle and left thigh with an expandable baton to stop the assault.
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e. After this second altercation, plaintiff was escorted to the Facility A
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Program Office and placed in a holding cell.
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Defendants Hall, Lee, and Tucker, were not present during the physical altercation
in Building 4.
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That same evening, on May 2, 2006, at approximately 9:00 p.m., defendant Hall
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evaluated plaintiff’s injuries in the Program Office and noted that plaintiff had a
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swollen left ankle and a cut that was bleeding on his left thigh.
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6.
Defendant Hall retrieved a wheelchair for plaintiff.
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7.
Defendant Hall did not receive a call from anyone regarding plaintiff for the
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remainder of his shift.
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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.
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When plaintiff left the Program Office the night of May 2, 2006, he was sent to a
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cell on the second floor of Building 1, Facility A, where defendants Lee and
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Tucker were the second-watch floor officers from 6:00 a.m. to 2:00 p.m.
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10.
On May 4, 2006, plaintiff submitted a request for medical care. In addition to
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requesting medication for other ailments, plaintiff also requested that his foot be x-
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rayed because he could not walk.
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On May 5, 2006, at or around 1:00 a.m., plaintiff was treated for his complaints of
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ankle pain. Medical staff x-rayed plaintiff’s ankle and discovered a small distal
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fracture. A cast was placed on plaintiff’s ankle that same day.
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B.
Disputed Factual Issues
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1.
Whether defendant Hall believed plaintiff’s ankle was possibly broken and
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informed former defendants Herrera and McBride.
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2.
Whether defendant Hall knew plaintiff required medical treatment.
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3.
Whether defendant Hall refused to treat plaintiff’s injuries from May 2 to 4, 2006.
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4.
Whether plaintiff refused to go to the Treatment & Triage Area (“TTA”) and
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instead insisted on going back to his cell and refused to provide any information
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about his symptoms or injuries.
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5.
Whether defendant Hall called the nurse on duty in the TTA to seek advice on how
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to proceed regarding plaintiff’s injuries and was advised to put ice on plaintiff’s
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ankle, provide Motrin to control the pain and swelling, and that an x-ray would be
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ordered for plaintiff the following morning.
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6.
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was uncooperative and refused treatment.
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Whether defendant Hall informed plaintiff that if he changed his mind, Hall would
call the housing officers and send plaintiff to the TTA.
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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.
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Whether defendants Lee and Tucker were aware that plaintiff had a serious
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medical need, which they ignored while plaintiff was housed in Building 1 from
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May 2 to 4, 2006.
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10.
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Whether defendant Lee failed to summon medical care for plaintiff’s broken ankle
while housed in Building 1 from May 2 to 4, 2006.
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Whether plaintiffs’ injuries (the laceration on his left thigh and distal fracture on
his left ankle) amounted to a serious medical condition.
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12.
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Whether any defendant acted maliciously, oppressively, recklessly, or with evil
intent from March 2 to 4, 2006.
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13.
Whether any of the defendants’ conduct on May 2 to 4, 2006 violated plaintiff’s
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constitutional rights, and if so, would a reasonable prison official in defendants’
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position believe that their conduct was lawful or reasonable under the
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circumstances.
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C.
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(1)
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Disputed Evidentiary Issues2
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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.
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Plaintiff objects to introduction of the statement “Refused medical care until
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requesting ER attention tonight” found in the “Encounter Form” dated 5-5-06 by R.N. Engbrecht
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on hearsay grounds and because it is false.
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3.
Plaintiff objects to the testimony introduction of testimony of former defendants
Benyamin and Ferro for the reasons stated in his motion in limine.
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4.
Plaintiff objects to the admittance of any testimony by the 10 expert witnesses
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listed in defendants’ expert disclosures, or any other witnesses, pertaining to their “observation of
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plaintiff’s behavior” for the reasons stated in plaintiff’s motion in limine.
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Plaintiff reserves the right to raise objections to other evidence presented by
defendants.
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(2)
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1.
Defendants’ Evidentiary Disputes
Defendants object to plaintiff testifying about the diagnosis and prognosis of his
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left ankle injury and any residual effects of which he now complains. Defendants object that
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plaintiff is not qualified to give testimony about the cause and effect, diagnosis, or prognosis of
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his medical condition and that he is not qualified to interpret medical records.
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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.
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Defendants intend to file motions in limine to preclude plaintiff from testifying,
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eliciting testimony, or introducing evidence of the following matters: (a) dismissed defendants
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and claims and unrelated claims and individuals; (b) defendants’ involvement in other lawsuits,
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incidents, or inmate appeals alleging denial of medical care or other misconduct; (c) plaintiff’s
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theories that defendants and their counsel conspired to fabricate evidence; (d) reference to other
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lawsuit suits, litigation, or court-orders involving defendants’ attorneys; (e) offers to compromise;
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and (f) CDCR’s indemnification of an adverse judgment.
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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.
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4.
Defendants will file a motion in limine to permit them to introduce evidence of
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plaintiff’s and any incarcerated witness’s felony conviction and length of sentence for
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impeachment purposes.
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5.
Defendants anticipate objecting to many of plaintiff’s proposed trial exhibits, and
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will move to preclude plaintiff from using any document that was timely requested but not
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produced during discovery.
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Defendants reserve the right to file any other motion in limine as issues may arise
during pretrial and trial proceedings.
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D.
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None.
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V.
Special Factual Information
RELIEF SOUGHT
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Plaintiff seeks “three billion dollars” in compensatory damages, “three billion dollars” in
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punitive damages, court costs, trial costs, filing fees, attorney fees, and such further relief as the
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court deems proper.3
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Defendants seek judgment in this case and costs
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Plaintiff is not confined to seeking damages in the amount identified in his amended complaint.
Fed. R. Civ. P. 54(c).
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VI.
POINTS OF LAW
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A.
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The Civil Rights Act under which this action was filed provides:
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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.
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Section 1983
42 U.S.C. § 1983.
Section 1983 provides a cause of action for the violation of plaintiff’s constitutional rights
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by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir.
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2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams,
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297 F.3d 930, 934 (9th Cir. 2002). To prevail on his inadequate medical care claim, plaintiff
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must demonstrate a link between actions or omissions of defendant and the violation of his Eighth
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Amendment rights; there is no respondeat superior liability under section 1983. Ashcroft v.
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Iqbal, 556 U.S. 662, 676-77 (2009); Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d
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1062, 1074–75 (9th Cir. 2013); Moss v. U.S. Secret Service, 711 F.3d 941, 967–68 (9th Cir.
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2013); Lacey v. Maricopa County, 693 F.3d 896, 915–16 (9th Cir. 2012) (en banc); Simmons v.
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Navajo County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010).
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B.
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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a
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prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need
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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton
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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,
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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
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Cir.1997) (en banc)).
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Deliberate Indifference to Serious Medical Needs
To maintain an Eighth Amendment claim based on alleged inadequate medical care in
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prison, a plaintiff must first “show a serious medical need by demonstrating that failure to treat a
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prisoner=s condition could result in further significant injury or the unnecessary and wanton
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infliction of pain. Second, the plaintiff must show the defendants= response to the need was
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deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett,
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439 F.3d at 1096 (quotation marks omitted)).
As to the first prong, indications of a serious medical need “include the existence of an
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injury that a reasonable doctor or patient would find important and worthy of comment or
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treatment; the presence of a medical condition that significantly affects an individual’s daily
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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,
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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at
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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
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negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or
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safety.’” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).
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Deliberate indifference is shown where a prison official “knows that inmates face a substantial
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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”
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Id.at 847. In medical care cases, this requires showing: (a) a purposeful act or failure to respond
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to a prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm,
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680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was
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substantial; however, such would provide additional support for the inmate’s claim that the
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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974
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F.2d at 1060.
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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060
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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from
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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person
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‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison
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official should have been aware of the risk, but was not, then the official has not violated the
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Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe,
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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
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C.
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“Qualified immunity shields government officials from civil damages liability unless the
Qualified Immunity
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official violated a statutory or constitutional right that was clearly established at the time of the
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challenged conduct.” Taylor v. Barkes, --- U.S. ---, ---, 135 S. Ct. 2042, 2044 (2015) (quoting
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Reichle v. Howards, 566 U. S. 658, ---, 132 S. Ct. 2088, 2093 (2012)). Qualified immunity
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analysis requires two prongs of inquiry: “(1) whether ‘the facts alleged show the official’s
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conduct violated a constitutional right; and (2) if so, whether the right was clearly established’ as
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of the date of the involved events ‘in light of the specific context of the case.’” Tarabochia v.
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Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) (quoting Robinson v. York, 566 F.3d 817, 821 (9th
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Cir. 2009). These prongs need not be addressed in a particular order. Pearson v. Callahan, 555
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U.S. 223 (2009).
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To determine whether a government official should be granted qualified immunity, under
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the first prong, the facts are to be viewed “in the light most favorable to the injured party.”
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Chappell v. Mandeville, 706 F.3d 1052, 1058 (9th Cir. 2013) (quoting Saucier v. Katz, 533 U.S.
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194, 201 (2001), overruled in part on other grounds by Pearson, 555 U.S. at 817-21; see also
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Bryan v. MacPherson, 630 F.3d 805, 817 (9th Cir. 2010)). However, the existence of a material
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factual dispute does not necessarily preclude a finding of qualified immunity. Estate of Ford v.
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Ramirez-Palmer, 301 F.3d 1043, 1053 (9th Cir. 2002).
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Under the second prong, clearly established law is not to be defined “at a high level of
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generality.” White v. Pauly, --- S. Ct. ---, ---, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-
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Kidd, 563 U.S. 731, 742 (2011)); see also Mullenix v. Luna, --- U.S. ---, 136 S. Ct. 305, 308
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(2015) (quoting al-Kidd, 563 U.S. at 742). “The dispositive question is ‘whether the violative
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nature of particular conduct is clearly established.’” Ibid. (emphasis added in Mullinex). “This
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inquiry ‘ “ ‘must be undertaken in light of the specific context of the case, not as a broad general
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proposition.’ ” ’ ” Id., (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier
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v. Katz, 533 U.S. 194, 201 (2001))). “[G]eneral statements of the law are not inherently incapable
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of giving fair and clear warning” to officers, White, 137 S. Ct. at 552 (quoting United States v.
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Lanier, 520 U.S. 259, 271 (1997)), but “in the light of pre-existing law the unlawfulness must be
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apparent,” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The relevant inquiry
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is whether existing precedent placed the conclusion that [the defendant] acted unreasonably in the
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[specific circumstances confronted] ‘beyond debate.’ ” Mullenix, 136 S. Ct. at 309 (quoting al-
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Kidd, 563 U.S. at 741).
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“To be clearly established, a right must be sufficiently clear that every reasonable official
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would have understood that what he is doing violates that right.” Reichel, 132 S. Ct. at 2092; see
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also Castro v. County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016). “When properly
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applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly
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violate the law.” al-Kidd, 563 U.S. at 743 (citation and internal quotation marks omitted). “We
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do not require a case directly on point, but existing precedent must have placed the statutory or
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constitutional question beyond debate.” Id. at 741. “[A] ‘robust consensus of cases of persuasive
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authority’ ” in the Courts of Appeals could establish the federal right [in question].” City and
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County of San Francisco v. Sheehan, --- U. S. ---, ---, 135 S. Ct. 1765, 1778 (2015).
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D.
Punitive Damages
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Plaintiff has the burden of proving what, if any, punitive damages should be awarded by a
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preponderance of the evidence. Ninth Circuit Model Civil Jury Instructions § 5.5 (2007). In
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order to award punitive damages, the jury must find that defendant’s conduct was “motivated by
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evil motive or intent, or . . . involves reckless or callous indifference to the federally protected
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rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1986). Acts or omissions which are malicious,
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wanton, or oppressive support an award of punitive damages. Dang v. Cross, 422 F.3d 800, 807-
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08 (9th Cir. 2005).
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E.
Federal Rules of Evidence
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Federal Rules of Evidence 608 and 609 provide that evidence of a witness’s prior felony
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conviction or instance of conduct demonstrating a propensity to lie may be used to impeach that
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witness’s testimony.4 Federal Rule of Evidence 404(b) provides that evidence of prior crimes,
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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).
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wrongs, or acts cannot be used to prove the character of the person in order to show conduct in
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conformity with that character trait. Such prior acts may be admissible for other purposes only,
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such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
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mistake or accident. Id.
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VII.
ABANDONED ISSUES
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The court previously granted summary judgment in favor of defendants Trimble, Brown,
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Reeves, Munoz, Singleton, McBride, Collier, Redding, Franco, and Herrera on all claims against
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them. (Doc. No. 128.) Consequently, these defendants have been dismissed from this action.
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Other than this, the parties have not abandoned any issues.
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VIII.
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WITNESSES5
The following is a list of witnesses that the parties expect to call at trial, including rebuttal
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and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS
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SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR
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UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT
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“MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(10).
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A.
Plaintiff’s Witness List6
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1.
Christopher Harbridge, plaintiff, (PVSP) (CDCR # K-61356)
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2.
D. Hall, defendant (may be contacted through his attorneys of record)
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3.
T. Lee, defendant (may be contacted through his attorneys of record)
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4.
W. Tucker, defendant (may be contacted through his attorneys of record)
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It is noted that plaintiff identified inmate William Sutherland, CDCR #T-59697 in his
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Pretrial Statement list of witnesses. (Doc. 145, p. 11.) However, plaintiff did not list Sutherland
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in his motion for attendance of incarcerated witnesses. (Doc. 146.) Thus, plaintiff has failed to
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make the requisite showing to obtain inmate Sutherland’s transport for appearance and may not
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All parties will be allowed to call themselves and opposing parties as witnesses.
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Plaintiff’s motion for attendance of incarcerated witnesses is denied by separate order of the
court.
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call him as a witness at the trial in this matter.
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B.
Defendant’s Witness List7
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1.
Christopher Harbridge, plaintiff, (PVSP) (CDCR # K-61356)
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2.
D. Hall, defendant (may be contacted through his attorneys of record)
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3.
T. Lee, defendant (may be contacted through his attorneys of record)
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4.
W. Tucker, defendant (may be contacted through his attorneys of record)
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5.
Sheree Engbrecht, R.N. (address previously provided with expert disclosures)
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6.
Nancy J. Harrod, R.N. (address previously provided with expert disclosures)
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7.
Richard T. Ferro, M.D. (address previously provided with expert disclosures)
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8.
Hani A. Benyamin, M.D. (address previously provided with expert disclosures)
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9.
Indravadan A. Dave, M.D. (address previously provided with expert disclosures)
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10.
Eric Leveque, D.O. (address previously provided with expert disclosures)
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11.
John N. Chokatos, M.D. (address previously provided with expert disclosures)
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12.
Jeffrey L. Tanji, M.D. (address previously provided with expert disclosures)
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13.
Custodian(s)8 of Records for Plaintiff’s central file and medical records with
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CDCR (PVSP)
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14.
E. Redding Correctional Officer (PVSP) -- rebuttal only
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15.
E. McBride, Sergeant (PVSP) -- rebuttal only
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IX.
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EXHIBITS
The following is a list of documents or other exhibits that the parties expect to offer at
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trial. Plaintiff’s exhibits are presented as [Date (Author) Description]. NO EXHIBIT, OTHER
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THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS THE
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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.
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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.
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PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE
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MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule
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281(b)(11).
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A.
Plaintiff’s Exhibits
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1.
5-2-06 (Hall) CDC 7230 Interdisciplinary Progress Notes
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2.
5-2-06 (Hall) CDCR 7219 Medical Report of Injury or Unusual Occurrence,
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Re/Harbridge
3.
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5-2-06 (Long, MTA) CDCR 7219 Medical Report of Injury or Unusual
Occurrence, Re/ I/M Gentry
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4.
5-2-06 (Sgt. McBride) General Chrono, Order for Modified Program Status
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5.
5-2-06 (C.O. Mendez) CDC 837-C, Crime / Incident Report
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6.
5-3-06 (Lt. Herrera) CDC 837-A1, Page 2 of 6
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7.
5-3-06 (Lt. Herrera) CDC 837-Al, Page 3 of 5
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8.
5-4-06 (Harbridge) CDC 7362, Health care Services Request Form
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9.
5-5-06 (R.N. Engbrecht) Encounter Form: Miscellaneous / Multiple Systems
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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
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