Dixon v. Harrington et al

Filing 38

SCHEDULING ORDER and ORDER Directing Clerk to Send Plaintiff a Copy of Local Rule 281 (b), signed by Magistrate Judge Erica P. Grosjean on 03/03/2017. Telephonic Discovery Status Conference set for 7/24/2017 at 10:00 AM in Courtroom 10 (EPG) bef ore Magistrate Judge Erica P. Grosjean. Dispositive Motions filed by 1/12/2018. Telephonic Trial Confirmation Hearing set for 11/26/2018 at 01:30 PM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. Jury Trial set for 1/29/2019 at 08:30 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. # 1 Local Rule 281)

1
2

IN THE UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF CALIFORNIA

4
5

TRADELL M. DIXON,

6

Plaintiff,

7
8

v.

9
10
11

M. ARMAS, et al.,
Defendants.

CASE NO. 1:13-cv-00165-DAD-EPG (PC)
SCHEDULING ORDER AND ORDER
DIRECTING CLERK TO SEND PLAINTIFF
A COPY OF LOCAL RULE 281(b)
Telephonic Discovery
Status Conference:
July 24, 2017
Time: 10:00 a.m.
Courtroom 10 (EPG)
Nonexpert
Discovery Cut-off: September 8, 2017
Expert Disclosure
Deadline:

October 6, 2017

Rebuttal Expert
Disclosure Deadline:

November 3, 2017

Expert Discovery
Cut-off:

December 1, 2017

Dispositive Motion
Filing Deadline:

12

January 12, 2018

13
14
15
16
17
18
Telephonic Trial
Confirmation Hearing: November 26, 2018
Time: 1:30 p.m.
Courtroom 5 (DAD)

19
20
21

Jury Trial:

22

January 29, 2019
Time: 8:30 a.m.
Courtroom 5 (DAD)

23
24

This Court conducted a scheduling conference on March 1, 2017. Plaintiff Tradell Dixon

25

telephonically appeared on his own behalf. Counsel David Goodwin and Jon Allin telephonically

26

appeared on behalf of Defendants. Pursuant to Fed. R. Civ. P. 16(b), this Court now sets a

27

schedule for this action.

28

I.

DISCOVERY PROCEDURES
1

1

The parties are now granted leave to serve discovery in addition to that provided as part of

2

initial disclosures.1 However, discovery regarding the claim against defendant Armas is stayed

3

pending resolution of his motion to dismiss.

4

dismissed, discovery will open as to defendant Armas immediately upon the district judge’s order

5

adopting the findings and recommendations that deny the motion to dismiss.

6
7
8
9

If the claim against defendant Armas is not

Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall proceed as
follows:
1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil
Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed
with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that

10
discovery requests shall not be filed unless or until there is a proceeding in which the
11
12
13
14

document or proof of service is at issue).

Each party is limited to serving 15

interrogatories, 15 requests for production of documents, and 10 requests for
admission. On motion, these limits may be increased for good cause.
2. Responses to written discovery requests shall be due forty-five (45) days after the

15

request is first served. Boilerplate objections are disfavored and may be summarily

16

overruled by the Court. Responses to document requests shall include all documents

17

within a party’s possession, custody or control. Fed. R. Civ. P. 34(a)(1). Documents

18

are deemed within a party’s possession, custody, or control if the party has actual

19

possession, custody, or control thereof, or the legal right to obtain the property on

20

demand.2

21

3. If any party or third party withholds a document on the basis of privilege, they shall

22

provide a privilege log to the requesting party identifying the date, author, recipients,

23

general subject matter, and basis of the privilege within thirty (30) days after the date

24
25
26

that responses are due. Failure to provide a privilege log within this time shall result
in a waiver of the privilege. To the extent the requesting party disputes whether a
1

Plaintiff has until March 31, 2017, to serve Defendants with his supplemental initial disclosures.
Defendant(s)’ responses should be consistent with their right to request documents pursuant to
California Government Code § 3306.5 (“Each employer shall keep each public safety officers’ personnel file or a true
and correct copy thereof, and shall make the file or copy thereof available within a reasonable period of time after a
request thereof by the officer.”).
2

27
28

2

1

document is privileged, it can raise that issue to the Court's attention in its statement of

2

a discovery dispute to be discussed at the discovery conference (see below). If a party

3

or third party withholds a document on the basis of the official information privilege,

4

the requesting party may request that the Court conduct an in camera review of such

5

document so that the Court can balance the moving party's need for the documents in

6
7
8
9

the litigation against the reasons that are asserted in defending their confidentiality. In
any such request for in camera review, the party requesting review shall identify, with
specificity, the document(s) for which review is sought.
4. The parties are required to act in good faith during the course of discovery and the
failure to do so may result in the payment of expenses pursuant to Federal Rule of

10
Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal
11
12
13
14

Rules of Civil Procedure or the Local Rules.
5. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose
Plaintiff and any other witness confined in a prison upon condition that, at least
fourteen (14) days before such a deposition, Defendant(s) serve all parties with the

15

notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to

16

participate in a properly noticed deposition could result in sanctions against Plaintiff,

17

including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule

18

of Civil Procedure 30(b)(4), the parties may take any deposition under this section by

19

video conference without a further motion or order of the Court. Due to security

20

concerns and institutional considerations not applicable to Defendant(s), Plaintiff must

21

seek leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of

22

Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion

23

for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary.

24
25
26
27

6. With the Court’s permission, Plaintiff may serve third party subpoenas, including on
the California Department of Corrections and Rehabilitation and/or the Office of the
Inspector General if Plaintiff seeks documents from them and the entities are not
presently defendants in this case. To issue a subpoena on these entities, or any other
third parties, Plaintiff must file a request for the issuance of a subpoena duces tecum

28
3

1

with the Court. If the Court approves the request, it may issue Plaintiff a subpoena

2

duces tecum, commanding the production of documents from a non-party, and may

3

command service of the subpoena by the United States Marshal Service. Fed. R. Civ.

4

P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request

5

only if the documents sought from the non-party are not equally available to Plaintiff
and are not obtainable from Defendant(s) through a request for production of

6

documents. Fed. R. Civ. P. 34. In any request for a subpoena, Plaintiff must: (1)

7

identify with specificity the documents sought and from whom, and (2) make a

8

showing in the request that the records are only obtainable through that third party.

9

The documents requested must also fall within the scope of discovery allowed in this
10
action. See Fed. R. Civ. P. 26(b)(1).
11

7. A discovery conference has been set for July 24, 2017, at 10:00 a.m. Parties have

12

leave to appear by phone. To join the conference, each party is directed to call the

13

toll-free number (888) 251−2909 and use Access Code 1024453. Up until two weeks

14

before the discovery conference, the parties may file a motion to compel further

15

discovery responses. One week before the discovery conference, the responding party

16

may file a response to the motion to compel. The motion should include a copy of the

17

request(s) and any response to the request(s) at issue. Unless there is a need for

18

discovery prior to the discovery conference, motions to compel will not be considered

19

until the discovery conference. Motions to compel will not be permitted after the

20

discovery conference absent good cause. The parties should be prepared to address all

21

discovery disputes at the discovery conference.

22

II.

NON-EXPERT DISCOVERY DEADLINE

23

The deadline for the completion of all non-expert discovery is September 8, 2017. All

24

non-expert discovery must be provided by this date, including discovery compelled following the

25
26
27
28

discovery conference.
III.

EXPERT DISCLOSURES
The deadline for all parties to serve their expert disclosures is October 6, 2017. Parties

have until November 3, 2017, to serve their rebuttal expert disclosures. The deadline for the
4

1

completion of all expert discovery is December 1, 2017.

2

IV.

EXHAUSTION MOTIONS
All Defendants have informed the Court that they do not intend to present any challenge

3
4

for failure to exhaust administrative remedies.

5

V.

DISPOSITIVE MOTIONS DEADLINE
The deadline for filing all dispositive motions pursuant to Fed. R. Civ. P. 56 is January

6
7

12, 2018.

8

VI.

The Court is not setting a settlement conference at this time.

9
10
11
12
13

SETTLEMENT CONFERENCE

VII.

MAGISTRATE JUDGE JURISDICTION
Defendants have declined the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §

636(c). (ECF No. 33).
VIII. TELEPHONIC TRIAL CONFIRMATION HEARING
The Telephonic Trial Confirmation Hearing (“TTCH”) is set for November 26, 2018, at

14
1:30 p.m., in Courtroom 5, before District Judge Dale A. Drozd. Plaintiff is required to appear
15
16
17
18

telephonically, and Defendants’ counsel are encouraged to appear telephonically. The dial in
number is 877-402-9757 (access code 6966236). Because the Court may be hearing other matters
using the same conference line, the parties should wait to state their appearance until their case
has been called and appearances are requested. The parties should keep all background noise to a

19

minimum. If Defendants’ counsel choose to appear telephonically, at least 48 hours prior to the

20

TTCH they must email Courtroom Deputy Renee Gaumnitz at [e-mail] to

21

advise the Court that they will be appearing telephonically.

22

In addition to the matters already required to be addressed in the pretrial statement in

23

accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in

24

order to obtain the attendance of witnesses. The procedures and requirements for making such a

25

showing are outlined in detail below.

26

procedures set forth below may result in the preclusion of any or all witnesses named in his

27

pretrial statement.

28

Plaintiff is advised that failure to comply with the

At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of
5

1

the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of

2

trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to

3

produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or

4

witness testimony.

5

procedures to ensure that the witnesses will be at the trial and available to testify.

6
7
8
9

1.

If Plaintiff wants to call witnesses to testify, he must follow certain

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to

Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give
testimony cannot come to court unless this Court orders the warden or other custodian to permit
the witness to be transported to court. This Court will not issue such an order unless it is satisfied
that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual

10
knowledge of relevant facts.
11
12
13
14

A party intending to introduce the testimony of incarcerated witnesses who have agreed
voluntarily to attend the trial must serve and file concurrent with the pretrial statement a written
motion for a court order requiring that such witnesses be brought to court at the time of trial. The
motion must: (1) state the name, address, and prison identification number of each such witness;

15

and (2) be accompanied by declarations showing that each witness is willing to testify and that

16

each witness has actual knowledge of relevant facts. The motion should be entitled “A Motion

17

for Attendance of Incarcerated Witnesses.”

18

The willingness of the prospective witness can be shown in one of two ways: (1) the party

19

himself can swear by declaration under penalty of perjury that the prospective witness has

20

informed the party that he or she is willing to testify voluntarily without being subpoenaed, in

21

which declaration the party must state when and where the prospective witness informed the party

22

of this willingness; or (2) the party can serve and file a declaration, signed under penalty of

23

perjury by the prospective witness, in which the witness states that he or she is willing to testify

24
25
26
27

without being subpoenaed.
The prospective witness’s actual knowledge of relevant facts can be shown in one of two
ways: (1) if the party has actual firsthand knowledge that the prospective witness was an
eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in plaintiff’s cell
and, at the time, plaintiff saw that a cellmate was present and observed the incident, plaintiff may

28
6

1

swear to the cellmate’s ability to testify), the party himself can swear by declaration under penalty

2

of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a

3

declaration signed under penalty of perjury by the prospective witness in which the witness

4

describes the relevant facts to which the prospective witness was an eye- or ear witness. Whether

5

the declaration is made by the party or by the prospective witness, it must be specific about the

6
7
8
9

incident, when and where it occurred, who was present, and how the prospective witness
happened to be in a position to see or to hear what occurred at the time it occurred.
The Court will review and rule on the motion for attendance of incarcerated witnesses,
specifying which prospective witnesses must be brought to Court. Subsequently, the Court will
issue the order necessary to cause the witness’s custodian to bring the witness to Court.

10
Motions for the attendance of incarcerated witnesses, if any, must be filed on or before
11
12
13
14

September 26, 2018. Oppositions, if any, must be filed on or before October 26, 2018.
2.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to

Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who
refuse to testify voluntarily, the party should submit with his pretrial statement a motion for the

15

attendance of such witnesses. Such motion should be in the form described above. In addition,

16

the party must indicate in the motion that the incarcerated witnesses are not willing to testify

17

voluntarily.

18

3.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to

19

Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated

20

witness’s voluntary attendance to notify the witness of the time and date of trial. No action need

21

be sought or obtained from the Court.

22
23
24
25
26
27

4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to

Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify
voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the
party seeking the witness’s presence must tender an appropriate sum of money for the witness.
Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness
fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821.
If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who

28
7

1

refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and

2

location of each unincarcerated witness. The Court will calculate the travel expense for each

3

unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness,

4

submit a money order made payable to the witness for the full amount of the witness’s travel

5

expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the

6
7
8
9

unincarcerated witness by the United States Marshal unless the money order is tendered to the
Court. Because no statute authorizes the use of public funds for these expenses in civil cases, the
tendering of witness fees and travel expenses is required even if the party was granted leave to
proceed in forma pauperis.
If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse to

10
testify voluntarily, Plaintiff must submit the money orders to the Court no later than October 26,
11
12
13

2018. In order to ensure timely submission of the money orders, Plaintiff must notify the Court
of the names and locations of his witnesses, in compliance with step 4 above, no later than
September 26, 2018.

14

Plaintiff shall file and serve a pretrial statement as described in this order on or before

15

September 26, 2018. Defendant shall file and serve a pretrial statement as described in this order

16

on or before October 26, 2018.

17

The parties are advised that failure to file pretrial statements as required by this order may

18

result in the imposition of appropriate sanctions, which may include dismissal of the action or

19

entry of default.
The Clerk is DIRECTED to send Plaintiff a copy of Local Rule 281(b).

20
21

IX.

TRIAL DATE
A jury trial is set for January 29, at 8:30 a.m., in Courtroom 5, before

22
23

District Judge Dale A. Drozd.

24

X.

25
26
27
28

EFFECT OF THIS ORDER
This order represents the Court and the parties’ best estimated schedule to complete this

case. Any party unable to comply with the dates outlined in this order shall immediately file an
appropriate motion or stipulation identifying the requested modification(s).
The dates set in this Order are considered to be firm and will not be modified absent a
8

1

showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the

2

civil case docket, this Court disfavors requests to modify established dates.

3

Failure to comply with this order may result in the imposition of sanctions.

4
IT IS SO ORDERED.
5
6

Dated:

March 3, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9