Bryant v. Gallagher et al

Filing 304

AMENDED and SUPPLEMENTAL PRETRIAL ORDER signed by Magistrate Judge Barbara A. McAuliffe on 10/18/2016. Telephonic Status Conference set for 11/17/2016 at 09:00 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe; Jury Trial set for 12/13/2016 at 08:30 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN DARNELL BRYANT,

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Plaintiff,
v.
GALLAGHER, et al.,
Defendants.

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Case No. 1:11-cv-00446-BAM (PC)
AMENDED AND SUPPLEMENTAL
PRETRIAL ORDER
Telephonic Status Conference: November 17, 2016
at 9:00 a.m. in Courtroom 8 (BAM)
Additional Motions in Limine Filing: November 22,
2016
Motion in Limine Response: December 1, 2016
Motion in Limine Hearing: December 6, 2016, at
10:00 a.m. in Courtroom 8 (BAM)
Jury Trial: December 13, 2016 at 8:30 am. in
Courtroom 8 (BAM) (4-5 days)

Plaintiff Kevin Darnell Bryant (“Plaintiff”) is state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. All parties have consented to

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magistrate judge jurisdiction. (ECF Nos. 7, 231.) This action proceeds on Plaintiff’s claims against

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Defendant Romero for deliberate indifference to serious medical needs in violation of the Eighth

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Amendment, and against Defendants Gallagher and Romero for conspiracy, retaliation in violation of

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the First Amendment, and failure to protect in violation of the Eighth Amendment.

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On October 13, 2016, on Plaintiff’s motion, the Court continued the previously set trial date in

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this matter, and vacated the then-pending deadlines. (ECF No. 291.) Consequently, the Court issues

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the instant order amending and supplementing the August 4, 2016 pretrial order. Except as amended

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herein, the remaining portions of the Court’s August 4, 2016 pretrial order still stand:

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I.

Trial

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Trial is set for December 13, 2016 at 8:30 a.m. before U.S. Magistrate Judge Barbara A.

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McAuliffe in Courtroom 8 (BAM). The parties anticipate the trial will last approximately four to five

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(4-5) days.

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A telephonic pre-trial status conference is set for November 17, 2016 at 9:00 a.m. Parties

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appearing telephonically may do so by using the following dial-in number and passcode at the time set

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for the status conference: dial-in number 1-877-411-9748; passcode 3190866.

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II.

Witnesses

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The parties previously submitted lists of witnesses they expect to call at trial, as set forth in the

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August 4, 2016 pretrial order. All matters dealing with the issuance of any writs of habeas corpus ad

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testificandum directing the transport of any incarcerated witnesses, and of any civil subpoenas

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commanding the appearance of an unincarcerated witnesses to testify at trial, shall be heard at the

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November 17, 2016 telephonic status conference.

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III.

Motions in Limine

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The parties have previously submitted motions in limine in this matter, which were heard on

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October 4, 2016, (ECF No. 281), and an order granting in part and denying in part such motions, and

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reserving certain rulings until trial, was issued on October 5, 2016, (ECF No. 283). The Court finds it

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prudent to allow, if necessary and if the parties find that other evidentiary disputes can be addressed

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prior to trial, the parties to file additional pre-trial motions in limine. The parties are cautioned of the

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standards related to motions for reconsideration. Local Rule 230(j).

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The parties’ additional motions in limine, if any, must be served on the opposing party and

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filed with the Court by November 22, 2016. Any motion in limine must clearly identify the nature of

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the evidence that the moving party seeks to prohibit the other side from offering at trial. Any

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opposition to a motion in limine must be served on the other party, and filed with the Court by

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December 1, 2016.

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An order may be issued prior to trial resolving these motions. Otherwise, a telephonic motion

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in limine hearing will be held on December 6, 2016, at 10:00 a.m. Parties appearing telephonically

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may do so by using the following dial-in number and passcode at the time set for the hearing: dial-in

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number 1-877-411-9748; passcode 3190866.
Whether or not a party files a motion in limine, that party may still object to the

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introduction of evidence during the trial.

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IV.

Further Trial Preparation

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1.

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The parties are relieved of their obligation under Local Rule 285 to file a trial brief. If the

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Trial Briefs

parties wish to submit a trial brief, they must do so on or before December 2, 2016.

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2.

Verdict Form

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

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on the morning of trial. On October 4, 2016, Defendants submitted a proposed verdict form for the

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Court’s consideration. (ECF No. 278). If Plaintiff wishes to submit a proposed verdict form, he must

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do so on or before December 2, 2016.

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3.

Jury Instructions

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The Court will prepare the jury instructions, which the parties will have the opportunity to

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review on the morning of trial. On October 4, 2016, Defendants submitted proposed jury instructions

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for the Court’s consideration. (ECF No. 277.) The parties shall also meet and confer, by telephone

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or other means, to agree upon jury instructions for use at trial. The parties shall file and serve all

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agreed-upon jury instructions, and identify them as such, by no later than December 2, 2016.

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Jury instructions that the parties could not agree on may be filed and served by no later than

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December 2, 2016. Plaintiff may file and serve no more than ten proposed jury instructions and

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identify them as instructions upon which the parties could not agree. Similarly, Defendants may file

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and serve no more than ten proposed jury instructions and identify them as instructions upon which the

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parties could not agree. Without a prior order, the Court will not consider additional proposed jury

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instructions beyond the first ten.

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All jury instructions shall indicate the party submitting the instruction (e.g., Plaintiff or

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Defendants), the number of the proposed instruction in sequence, a brief title for the instruction

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describing the subject matter, the text of the instruction, and the legal authority supporting the

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instruction. The parties shall provide the Court with a copy of their proposed jury instructions in

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Word format, agreed and not jointly agreed upon, via e-mail at: [e-mail].
The parameters for preparing proposed jury instructions were set forth in the Court’s August 4,

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2016 pretrial order, and are set forth again here for ease of reference, with one additional instruction:

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The parties shall use Ninth Circuit Model Civil Jury Instructions to the extent possible. Ninth

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Circuit Model Jury Instructions SHALL be used where the subject of the instruction is covered by a

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model instruction. Otherwise, BAJI or CACI instructions SHALL be used where the subject of the

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instruction is covered by BAJI or CACI. All instructions shall be short, concise, understandable, and

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neutral and accurate statements of the law. Argumentative or formula instructions will not be given

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and must not be submitted. Quotations from legal authorities without reference to the issues at hand

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are unacceptable.

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The parties shall, by italics or underlining, designate any modification of instructions from

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statutory or case authority, or any pattern or form instruction, such as the Ninth Circuit Model Jury

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Instructions, BAJI, CACI, or any other source of pattern instructions. The parties must specifically

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state the modification made to the original form instruction and the legal authority supporting the

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modification.

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The Court will not accept a mere list of numbers of form instructions from the Ninth Circuit

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Model Jury Instructions, CACI, BAJI, or other instruction forms. The proposed jury instructions must

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be in the form and sequence which the parties desire to be given to the jury. All blanks to form

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instructions must be completed. Irrelevant or unnecessary portions of form instructions must be

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omitted.

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All jury instructions shall indicate the party submitting the instruction (e.g., Plaintiff or

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Defendants), the number of the proposed instruction in sequence, a brief title for the instruction

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describing the subject matter, the text of the instruction, and the legal authority supporting the

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instruction.

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4.

Proposed Voir Dire

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On October 4, 2016, Defendants submitted proposed voir dire questions for the Court’s

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consideration. (ECF No. 279.) Plaintiff’s proposed voir dire questions, if any, shall be filed on or

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before December 2, 2016, pursuant to Local Rule 162.1.

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5.

Statement of the Case

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

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suitable for reading to the jury at the outset of jury selection. On October 4, 2016, Defendants

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submitted a proposed statement of the case for the Court’s consideration. (ECF No. 280.)

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Plaintiff may serve on Defendants and file with the Court a proposed statement of the case on

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or before December 2, 2016. The Court will consider the parties’ statements, but will draft its own

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statement. The parties will be provided with the opportunity to review the Court’s prepared statement

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on the morning of trial.

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6.

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On October 11, 2016, the Court received from Defendants an original and two copies of

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Trial Exhibits

Defendants’ trial exhibits and the parties’ agreed joint trial exhibits, along with exhibit lists.

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Plaintiff may use the exhibits provided by Defendants, or elect to provide his own. If Plaintiff

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chooses to provide his own, Plaintiff’s counsel must submit the original and two copies of all trial

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exhibits, along with exhibit lists, to Courtroom Deputy Harriet Herman no later than December 2,

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2016. Plaintiff’s exhibits shall be pre-marked with the prefix “PX” and numbered sequentially

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beginning with 100 (e.g., PX-100, PX-101, etc.). Exhibits which are multiple pages shall be marked

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with page numbers in addition to the prefix and exhibit number, on each page of the exhibit (e.g., PX-

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100, page 1 of 2, PX-100, page 2 of 2, etc.). Exhibits shall also be separated by tabs.

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V.

Objections to Pretrial Order and Amended and Supplemental Pretrial Order

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Written objections to the August 4, 2016 pretrial order or to this amended and supplemental

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pretrial order, if any, must be filed on or before November 1, 2016. Such objections shall specify the

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requested modifications, corrections, additions or deletions.

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VI.

Compliance with Pretrial Order and Amended and Supplemental Pretrial Order

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Strict compliance with the August 4, 2016 pretrial order and this amended and supplemental

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pretrial order, and their requirements, is mandatory. The Court will strictly enforce the requirements of

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these orders, and counsel and parties are subject to sanctions for failure to fully comply with these

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orders and their requirements. The Court will modify these orders “only to prevent manifest injustice.”

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Fed. R. Civ. P. 16(e). The Court ADMONISHES the parties and counsel to obey the Federal Rules of

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Civil Procedure and the Court’s Local Rules and orders. The failure to do so will subject the parties

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and/or counsel to sanctions as the Court deems appropriate.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 18, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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