Meredith v. Overley et al

Filing 147

ORDER GRANTING Defendants' 145 Motion to Substitute Expert Witness; ORDER DENYING Plaintiff's 115 Motion to Preclude Defendants from Discussing the Case with Inmates; ORDER DENYING Plaintiff's 129 Motion for Sanctions; ORDER REGARDING Plaintiff's September 3, 2015 118 Notice to the Court signed by Magistrate Judge Michael J. Seng on 10/21/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE MEREDITH,

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Plaintiff,

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v.
D. OVERLEY, et al.,

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Defendants.

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CASE NO. 1:12-cv-00455-MJS (PC)
ORDER
GRANTING
DEFENDANTS’
MOTION TO SUBSTITUTE EXPERT
WITNESS (ECF No. 145)
ORDER DENYING PLAINTIFF’S MOTION
TO PRECLUDE DEFENDANTS FROM
DISCUSSING THE CASE WITH INMATES
(ECF No. 115)
ORDER DENYING PLAINTIFF’S MOTION
FOR SANCTIONS (ECF No. 129)

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ORDER REGARDING PLAINTIFF’S
SEPTEMBER 3, 2015 NOTICE TO THE
COURT (ECF No. 118)

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I.

PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action filed pursuant to 42 U.S.C. § 1983.

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Defendants D. Overley, Gamboa, and Benevidez on an Eighth Amendment conditions of

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confinement claim. (ECF No. 8.)

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The action proceeds against

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Before the Court is Defendants’ motion to substitute expert witness (ECF No.
145.), Plaintiff’s motions to preclude Defendants from discussing the case and for
sanctions (ECF Nos. 115 & 129.), and Plaintiff’s September 3, 2015 notice to the Court
regarding a subpoena for Officer Gaulden, his request for depositions, and his motion for
reconsideration (ECF No. 118.). Defendants filed a response to Plaintiff’s motion for
sanctions. (ECF No. 137.)
II.

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Defendants seek to substitute their proposed expert witness Dr. Church with Dr.
Wang. Defendants argue that Dr. Church lacks sufficient time to assist with the case,
Dr. Wang is already planning to testify as the custodian of Plaintiff’s medical records,
allowing Dr. Wang to testify will streamline the trial, and said substitution will not
prejudice Plaintiff who has not deposed Dr. Church.

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MOTION TO SUBSTITUTE EXPERT WITNESS

The Court finds these reasons compelling and sees no prejudice to Plaintiff if Dr.
Wang qualifies and is allowed to testify as a medical expert. To the extent that Dr. Wang
is the witness Defendants planned to call as the custodian of Plaintiff’s medical file, he
will be permitted to provide expert opinion regarding Plaintiff’s medical condition(s) if
Defendants lay the proper foundation at trial. Defendants’ motion is GRANTED.
III.

MOTION TO PRECLUDE DEFENDANTS FROM DISCUSSING THE CASE
Pursuant to Title 15 of the California Code of Regulations (“CCR”), Plaintiff seeks

to preclude Defendants from discussing the case with other inmates. Plaintiff argues
that Defendant Overley discussed the case with an inmate and told the inmate that he
wanted Plaintiff to “just die and go away.”

Plaintiff argues that this violates CCR

regulations regarding confidentiality and unlawful influence.
The alleged conduct does not violate either regulation cited by Plaintiff.

The

regulations prohibit inmates from exerting unlawful influence over other inmates, staff or
visitors, 15 C.C.R. § 3013, and discuss confidential materials, 15 C.C.R. § 3321. The
facts of the case are part of the public (Court) record and not confidential. To the extent

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Defendant Overley’s alleged comment is perceived as an attempt to assert unlawful
influence, the cited regulation does not apply as he is not an inmate. To the extent that
Plaintiff interprets the alleged comment as a solicitation to other inmates to harm
Plaintiff, no claim related thereto is before the Court in this case. Plaintiff is, in any
event, no longer in prison and presumably no longer exposed to any such threat.
Plaintiff’s motion is DENIED.
IV.

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Under Federal Rule of Civil Procedure 37(b), Plaintiff seeks monetary sanctions
against Defendants and an order denying them the use of any exhibits at trial. Plaintiff
argues that Defendants failed to respond to his discovery requests for transcripts of the
staff depositions conducted by Defendants in investigating the case and failed to provide
him with a copy of their trial exhibits.

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Defendants respond that the only deposition taken was of Plaintiff, and he has a
copy of the transcript of his deposition.

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Plaintiff indicates he has received a copy of at least some of Defendants trial
exhibits, but apparently he is missing others. Plaintiff does not describe or identify those
he has not received. (ECF No. 132.)

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The Court has not ordered Defendants to

provide Plaintiff with copies of any other deposition transcripts.

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MOTION FOR SANCTIONS

Plaintiff’s motion for sanctions will be DENIED, without prejudice to his resuming
the motion at trial if he shows that he was not provided all the exhibits and if the failure to
provide, or delay in providing, actually prejudiced him in some way. Defendants thus are
encouraged to undertake to determine if all of their proposed trial exhibits have actually
reached Plaintiff and, if not, provide the missing documents forthwith.
V.

SUBPOENA FOR OFFICER GAULDEN
Plaintiff filed a notice with the Court, indicating that he has not yet been able to

raise the fee required to subpoena his witness Officer Gaulden for trial. He asks that the
Court subpoena Officer Gaulden and defer the fee until the end of trial.

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In the Pre-trial Order, the Court advised Plaintiff that he had to comply with all
applicable procedures for subpoenaing Officer Gaulden, including paying the witness fee
by August 14, 2015. (ECF No. 111.) Plaintiff has not complied; he has not arranged for
payment of the witness fees. The Court cannot issue a subpoena without first receiving
the necessary funds. Plaintiff’s request is DENIED.
VI.

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In his September 3, 2015 notice to the Court, Plaintiff seeks transcripts of the
depositions conducted by Defendants and asks the Court to reconsider allowing him to
amend and increase his claim of punitive damages to $90,000. (ECF No. 118.)

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As noted above, the Court has previously ruled on Plaintiff’s motion for deposition
transcripts. To the extent Plaintiff is requesting the Court to reconsider its decision,
Plaintiff’s motion is DENIED.

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The Court has previously denied Plaintiff’s request for amendment of the amount
of damages because his reasons for amendment did not relate to his Eighth Amendment
claim.

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(ECF Nos. 67 & 111.)

Plaintiff seeks reconsideration of the Court’s denial,

indicating he also sought increased damages because of the severe trauma he suffered
in being confined to his cell for a 45-day period.

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No such transcripts exist, and Plaintiff has not

demonstrated otherwise.

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REQUEST FOR DEPOSITIONS AND RECONSIDERATION OF AMENDMENT

To the extent Plaintiff wishes to increase his Eighth Amendment claim for punitive
damages, he may do so at appropriate times during the trial without amending his
pleadings. If the jury finds in favor of Plaintiff it will be charged with determining whether
punitive damages should be awarded to him and, if so, the amount of said damages. In
that circumstance, Plaintiff can ask the jury to award whatever amount he deems
appropriate. Fed. R. Civ. Proc. 54(c) provides that final judgments should grant the relief
to which each party is entitled, even if they did not demand such relief in their pleadings
VII.

CONCLUSION AND ORDER
Accordingly, it is HEREBY ORDERED that:

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145.);
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Defendants’ motion to substitute expert witness is GRANTED (ECF No.

Plaintiff’s motion to preclude Defendants from discussing the case is
DENIED (ECF No. 115.);

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Plaintiff’s motion for sanctions is DENIED (ECF No. 129.); and

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Plaintiff’s requests for a subpoena for Officer Gaulden, for deposition

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transcripts, and for reconsideration of the order denying his motion to

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amend are DENIED (ECF No. 118.).

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IT IS SO ORDERED.

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Dated:

October 21, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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