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)

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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 Rgaumnitz@caed.uscourts.gov 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

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