Hill v. Clark et al

Filing 57

PRETRIAL ORDER, signed by Magistrate Judge Erica P. Grosjean on 11/2/15. Motions in Limine Deadline: 11/23/2015; Opposition to Motions in Limine Deadline: 12/14/2015; Other Pretrial Submissions Deadline: 12/14/2015; Telephonic Trial Confirmation Hearing set for 11/19/2015 at 09:30 AM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean; Jury Trial set for 1/5/2016 at 08:30 AM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean.(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNATHAN HILL,

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Plaintiff,

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1:13-cv-00386-EPG-PC
PRETRIAL ORDER

vs.

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C/O J. CLARK and

Motions in Limine Deadline: November 23, 2015

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C/O A. RIVAS,

Opposition to Motions in
Limine Deadline:

December 14, 2015

Other Pretrial Submissions:

December 14, 2015

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Defendants.

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Telephonic Trial Confirmation Hearing:
November 19, 2015, at 9:30 a.m. in
Courtroom 10 (EPG)

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Jury Trial: January 5, 2016, at 8:30 a.m. in
Courtroom 10 (EPG)

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This civil rights action, brought pursuant to 42 U.S.C. ' 1983, proceeds on the original

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Complaint filed by state prisoner Johnathan Hill (APlaintiff@) on March 18, 2013, against

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defendant Correctional Officer (C/O) J. Clark for use of excessive force, and defendant C/O A.

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Rivas for failure to protect Plaintiff, in violation of the Eighth Amendment.1 (ECF No. 1.)

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On January 24, 2014, the Court issued an order dismissing all other claims and defendants from this
action for failure to state a claim. (ECF No. 17.) The Court‟s order dismissed defendants C/O L. Aragon, C/O A. Tirado, C/O
J. Magana, Sergeant W. Rasley, C/O Flores, and the Doe Defendants from this action based on Plaintiff's failure to state any
claims upon which relief may be granted against them under § 1983.

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This case is presently set for jury trial on January 5, 2016, before Magistrate Judge Erica P.

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Grosjean.2 Note that the Court has indicated a willingness to hold trial on an alternate date in

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January to accommodate holiday scheduled, namely January 12, 2016 (Tuesday), January 20,

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2016 (Wednesday), or January 26, 2016 (Tuesday). A telephonic trial confirmation hearing is

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scheduled for November 19, 2015 before Magistrate Judge Grosjean.

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On September 10, 2015, Plaintiff filed his pretrial statement. (ECF No. 49.) On

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October 28, 2015, Defendants filed their pretrial statement. (ECF No. 54.) On October 30,

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2015, Defendants filed an amended pretrial statement. (ECF No. 56.) Having reviewed the

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pretrial statements and the remainder of the file, the Court now issues a pretrial order.

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I.

Jurisdiction and Venue

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The Court‟s subject matter jurisdiction is based on 28 U.S.C. '§ 1331 and 1342.

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Because the events at issue allegedly took place in Corcoran, California, venue is proper in the

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Eastern District of California, Fresno Division. There is no dispute concerning jurisdiction or

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venue.

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II.

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Jury Trial
Both parties have demanded a trial by jury.

III.

Facts and Evidentiary Issues
A.

Undisputed Facts
1.

Defendants Rivas and Clark came to Plaintiff‟s cell door and asked him

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if he wanted to come out and talk to a cell mate (celly), and Plaintiff

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responded yes.

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2.

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Defendants Rivas and Clark escorted Plaintiff from his cell to talk to the
celly.

3.

Defendants Rivas and Clark searched Plaintiff‟s cell.

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On July 31, 2015, defendants Clark and Rivas consented to the jurisdiction of a Magistrate
Judge under 28 U.S.C. § 636(c). (ECF No. 42.) On August 5, 2015, Plaintiff consented to the jurisdiction of a
Magistrate Judge under 29 U.S.C. § 636(c). (ECF No. 43.) On August 10, 2015, due to consent by the parties,
this case was reassigned to Magistrate Judge Gary L. Austin for all further proceedings, including trial and entry of
final judgment. (ECF No. 45.) On October 13, 2015, due to the retirement of Magistrate Judge Austin, this case
was reassigned from Magistrate Judge Austin to Magistrate Judge Erica P. Grojean. (ECF No. 51.)
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4.

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Defendants Rivas and Clark returned to the holding cell where Plaintiff
was being held, and escorted him back to his cell.

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5.

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When they reached the door to Plaintiff‟s cell, Plaintiff noticed that his
cell had been searched.

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6.

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Plaintiff told defendant Clark that he was not going to give the handcuffs
back.

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B.

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Defendants’ Additional Proposed Undisputed Facts
1.

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Plaintiff Jonathan Hill is a convicted felon properly in the custody of the
California Department of Corrections and Rehabilitation (CDCR).

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2.

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At all times relevant to this case, Plaintiff was housed at CSP-Corcoran
in cell 221 in Facility 3A, Building 4 (3A04).

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3.

3A04 is an Administrative Segregation Unit (Ad Seg).

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4.

Cell 221 is on the second floor of the housing unit.

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5.

At all times relevant to this case, Defendants were assigned to work in

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3A04, where Officer Rivas was a Search and Escort Officer, and Officer

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Clark was a Floor Officer.

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6.

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On January 29, 2012, Plaintiff was removed from his cell to talk to
another inmate about whether they were compatible to live together.

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7.

When Plaintiff and the other inmate were finished talking, Officer Rivas

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and Officer Clark escorted Plaintiff through 3A04 to return him to his

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cell.

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8.

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Escorts of Ad Seg inmates are generally performed by two escorting
officers.

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9.

The standard procedure was for escorting officers to stay within arms-

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length of the inmate, with at least one officer keeping his hand on the

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inmate‟s arms at all times.

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10.

During the escort, the inmate was required to remain facing forward

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because from that position, the inmate posed the least risk of harm to the

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escorting officers.

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The standard procedure was also for an Ad Seg inmate to be handcuffed
during an escort.

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Plaintiff‟s hands were cuffed behind his back.

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These procedures were necessary because Ad Seg is used to house

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inmates whose conduct in prison had been found to endanger the safety

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of others or the security of the institution.

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14.

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Upon arriving cell-front, Plaintiff stopped at the door and noticed that his
cell had been searched while he was away.

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Plaintiff was upset that his cell had been searched.

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Plaintiff began to enter his cell, and stated that he was not going to give

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back the handcuffs.

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Plaintiff knows he is not allowed to keep handcuffs in his cell.

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The handcuffs were made of metal, which Plaintiff also knows he is not

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allowed to keep in his cell.

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19.

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Because Plaintiff was agitated and threatened to keep the handcuffs,
Officer Clark quickly decided not to place Plaintiff back into the cell.

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Officer Clark ordered Plaintiff to step back away from the cell door.

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Instead, Plaintiff sat down on the floor in the doorway of his cell.

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22.

Officer Clark continued to maintain physical control of Plaintiff with

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both hands.

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Plaintiff began yelling for the building sergeant.

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Someone sounded an alarm, and other staff members from the building,

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including Lieutenant Weatherford, Sergeant Rasley, Officer Aragon,

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Officer Tirado, and Officer Magana responded.

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25.

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Plaintiff was escorted downstairs into the 3A04 dayroom, where he was
medically evaluated by Psychiatric Technician (PT) Lewis.

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Plaintiff did not tell PT Lewis that he was injured.

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PT Lewis physically examined Plaintiff‟s entire body using a flashlight,

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and did not find any injuries.
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and did not note any injuries to Plaintiff on that form.
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Plaintiff did not receive a Rules Violation Report (CDCR 115) related to
this incident.

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No Crime/Incident Report (CDCR 837) was created documenting use of
force by any staff relating to this incident.

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Following the medical evaluation, Plaintiff was escorted back to his cell
without any further incident.

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PT Lewis completed a Medical Report of Injury or Unusual Occurrence

On February 1, 2012, Plaintiff complained of an injury that he wanted to
document and he requested to be medically evaluated.

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At approximately 11:50 a.m., PT Zeller conducted a physical

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examination of Plaintiff and completed a Medical Report of Injury or

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Unusual Occurrence.

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34.

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On the form, PT Zeller noted a .25 millimeter scratch on Plaintiff‟s left
forearm.

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35.

PT Zeller did not note any other injuries to Plaintiff‟s body.

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36.

At approximately 2:00 p.m., Plaintiff was placed on lanyard status after

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he again refused to return handcuffs after being escorted to his cell.
37.

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Later that same day, Plaintiff again complained of an injury that he
wanted to document and he requested another medical evaluation.

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At approximately 5:30 p.m., Licensed Vocational Nurse (LVN)

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Gonzales conducted a physical examination of Plaintiff and completed a

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Medical Report of Injury or Unusual Occurrence.
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39.

On that form, LVN Gonzales noted a scratch to Plaintiff‟s left forearm.

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LVN Gonzales did note any other injuries to Plaintiff‟s body.

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Later that evening, Plaintiff again complained that he had injuries that

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were several days old.

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42.

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At approximately 8:35 p.m., Plaintiff went to the medical clinic, where
he was physically examined by Registered Nurse (RN) Johnson.

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43.

RN Johnson noted only a small abrasion to Plaintiff‟s right wrist.

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RN Johnson noted that Plaintiff had no other abrasions, lacerations,

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bruises, contusions.

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Dr. Gill also examined Plaintiff during his visit to the medical clinic.

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Dr. Gill noted only a minor abrasion to Plaintiff‟s left wrist.

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C.

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Plaintiff=s Additional Proposed Undisputed Facts
1.

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After Plaintiff told defendant Clark that he was not going to give back
the handcuffs, Clark walked into the cell and grabbed the handcuffs.

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2.

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D.

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Defendant Clark then pulled Plaintiff backwards towards his cell door.

Disputed Facts
1.

Whether, on January 29, 2012, after Plaintiff sat down on the ground in

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the doorway of his cell, he voluntarily lay down on the ground and rolled

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himself into a prone position.

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2.

Whether, after Plaintiff sat down, and then lay down, the only physical

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contact Officer Clark had with him was to maintain control of Plaintiff

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using both hands.

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3.

Whether, after Plaintiff sat down on the ground in the doorway of his

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cell, Officer Clark “sumo pushed” Plaintiff‟s head between his legs and

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down to the floor.

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4.

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Whether Officer Clark then wrestled on the ground with Plaintiff in an
attempt to force Plaintiff to go prone.

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5.

Whether Officer Clark kneeled on Plaintiff‟s head and face, pushing
Plaintiff‟s head into the floor with all of his might.

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6.

Whether Officer Clark told Officer Rivas to grab Plaintiff‟s legs.

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7.

Whether Officer Rivas grabbed Plaintiff‟s legs, lifted them in the air, and

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held them there for an extended period of time.

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8.

Whether Officer Clark repeatedly hit Plaintiff in the head.

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9.

Whether Officer Rivas failed to protect Plaintiff from a known risk of

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harm on January 29, 2012.
E.

Plaintiff=s Additional Disputed Facts

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1.

Whether Defendants tore up Plaintiff‟s cell.

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2.

Whether defendant Clark wrestled Plaintiff over onto his right side, and
Plaintiff‟s body would not go because his door-frame was in the way.

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3.

Whether Plaintiff told defendant Clark that he was crushing Plaintiff‟s

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glasses, to which Clark responded, “They‟re state glasses, you can get

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some more.”

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4.
F.

Whether Plaintiff suffered any injuries.

Defendants’ Disputed Evidentiary Issues
1.

Whether evidence concerning claims and Defendants that have been

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dismissed is admissible for any purpose. In its screening order, the

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Court dismissed Plaintiff‟s claims

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Officers Flores, Aragon, Tirado, Magana, and Sergeant Rasley.

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2.

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against Defendant Correctional

Whether Plaintiff should be able to offer any opinion testimony
concerning his medical records or medical condition.

3.

Whether Plaintiff should be able to offer any evidence regarding

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Defendants‟ involvement, if any, in other lawsuits, claims, or incidents

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alleging misconduct.

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4.

Whether Plaintiff should be able to offer evidence or testimony regarding
any settlement discussions the parties may have had.
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5.

Whether Plaintiff should be able to offer evidence that the State may pay

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the judgment or reimburse Defendants in the event a judgment is

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rendered against them.

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6.

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Whether the abstracts of judgment for Plaintiff or any incarcerated
witnesses are admissible for impeachment purposes.

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G.

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Plaintiff is not aware of any disputed evidentiary issues.

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H.

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Not applicable.

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IV.

Plaintiff=s Disputed Evidentiary Issues

Special Factual Information

Relief Sought

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Plaintiff seeks compensatory and punitive damages from each defendant, court costs,

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and attorney‟s fees, should he request an attorney. Defendants pray for judgment in their favor

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with an award of costs.

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V.

Points of Law

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This action now proceeds only on Plaintiff‟s § 1983 claim against defendant

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Correctional Officer (C/O) J. Clark for use of excessive force, and defendant C/O A. Rivas for

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failure to protect Plaintiff, in violation of the Eighth Amendment. No other claims are at issue.

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A.

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The Civil Rights Act under which this action was filed provides:

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Imposition of Liability Under Section 1983

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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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.
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Section 1983 plainly requires that there be an actual connection or link between the

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actions of Defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). AA person deprives another of a constitutional right, where that person >does an

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affirmative act, participates in another=s affirmative acts, or omits to perform an act which [that

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person] is legally required to do that causes the deprivation of which complaint is made.=@

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). A[T]he >requisite causal connection can

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be established not only by some kind of direct, personal participation in the deprivation, but

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also by setting in motion a series of acts by others which the actor knows or reasonably should

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know would cause others to inflict the constitutional injury.=@ Id. at 743-44.

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B.

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AWhat is necessary to show sufficient harm for purposes of the Cruel and Unusual

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Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .@ Hudson

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v. McMillian, 503 U.S. 1, 8 (1992). AThe objective component of an Eighth Amendment claim

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is . . . contextual and responsive to contemporary standards of decency.@ Id. (internal quotation

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marks and citations omitted). The malicious and sadistic use of force to cause harm always

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violates contemporary standards of decency, regardless of whether or not significant injury is

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evident.

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Amendment excessive force standard examines de minimis uses of force, not de minimis

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injuries)). However, not Aevery malevolent touch by a prison guard gives rise to a federal cause

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of action.@ Id. at 9. AThe Eighth Amendment=s prohibition of cruel and unusual punishments

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necessarily excludes from constitutional recognition de minimis uses of physical force,

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provided that the use of force is not of a sort >repugnant to the conscience of mankind.=@ Id. at

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9-10 (internal quotations marks and citations omitted). “Prison administrators ... should be

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accorded wide-ranging deference in the adoption and execution of policies and practices that in

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their judgment are needed to preserve internal order and discipline and to maintain institutional

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security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979); Whitley v. Albers, 475 U.S. 312, 320-

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322 (1986).

Excessive Force

Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth

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A[W]henever prison officials stand accused of using excessive physical force in

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violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm.@ Id. at 7. AIn determining whether the use of force was wanton and

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unnecessary, it may also be proper to evaluate the need for application of force, the relationship

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between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response.@ Id.

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(internal quotation marks and citations omitted). AThe absence of serious injury is . . . relevant

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to the Eighth Amendment inquiry, but does not end it.@ Id.

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C.

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The Eighth Amendment requires prison officials to take reasonable measures to

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guarantee the safety of inmates, which has been interpreted to include a duty to protect

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prisoners. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Hearns v. Terhune, 413 F.3d

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1036, 1040 (9th Cir. 2005). A prisoner seeking relief for an Eighth Amendment violation must

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show that the officials acted with deliberate indifference to the threat of serious harm or injury

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to an inmate. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). “Deliberate

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indifference” has both subjective and objective components. A prison official must “be aware

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of facts from which the inference could be drawn that a substantial risk of serious harm exists

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and . . . must also draw the inference.” Farmer, 511 U.S. at 837. Liability may follow only if a

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prison official “knows that inmates face a substantial risk of serious harm and disregards that

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risk by failing to take reasonable measures to abate it.” Id. at 847.

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D.

Failure to Protect

Damages Issues
1.

Nominal Damages

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If the jury finds the plaintiff has proved his claim for violation of his constitutional

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rights, Anominal damages must be awarded >as a symbolic vindication of [the plaintiff=s]

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constitutional right= whether or not the constitutional violation causes any actual damage.@

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George v. City of Long Beach, 973 F.2d 706, 708 (9th Cir. 1992) (quoting Floyd v. Laws, 929

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F.2d 1390, 1401 (9th Cir. 1991)); Schneider v. County of San Diego, 285 F.3d 784, 794 (9th
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Cir. 2002). AIf the jury finds a constitutional violation, an award of nominal damages is

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mandatory, not permissive,@ Floyd, 929 F.2d at 1402-03, and the amount of actual damages a

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jury chooses to award, if any at all, is irrelevant to the plaintiff=s entitlement to nominal

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damages, Schneider, 285 F.3d at 794-95; Floyd at 1402-03.

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2.

Punitive Damages

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Punitive damages are available in section 1983 actions. Dang v. Cross, 422 F.3d 800,

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807 (9th Cir. 2005) (citations omitted). APunitive damages serve to punish the defendant for

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wrongful conduct and to deter the defendant and others from repeating the wrong.@ Id. at 810.

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The plaintiff has the burden of proving what, if any, punitive damages should be awarded by a

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preponderance of the evidence, id. at 807, and an award of punitive damages is predicated on

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the plaintiff proving that the defendant=s conduct was malicious, wanton, or oppressive, or in

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reckless disregard of the plaintiff=s rights, Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625

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(1986); Dang at 807-09.

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3.

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Damages for Mental and Emotional Injuries - Physical Injury
Requirement

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The Prison Litigation Reform Act provides that A[n]o Federal civil action may be

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brought by a prisoner confined in jail, prison, or other correctional facility, for mental and

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emotional injury suffered while in custody without a prior showing of physical injury.@ 42

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U.S.C. ' 1997e(e). The physical injury Aneed not be significant but must be more than de

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minimis.@ Oliver, 289 F.3d at 627 (back and leg pain and canker sore de minimis); see also

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Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir. 2008) (bladder infections and

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bed sores, which pose significant pain and health risks to paraplegics such as the plaintiff, were

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not de minimis).

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emotional injuries and does not bar claims for compensatory, nominal, or punitive damages.

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Id. at 630.

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E.

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“Qualified immunity shields federal and state officials from money damages unless a

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plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

The physical injury requirement applies only to claims for mental or

Qualified Immunity

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(2) that the right was „clearly established‟ at the time of the challenged conduct.” Ashcroft v.

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al-Kidd, 563 U.S. 731, ___, 131 S.Ct. 2074, 2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S.

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800, 818, 102 S.Ct. 2727, (1982)). This immunity protects “all but the plainly incompetent or

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those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092.

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(1986).

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When considering a claim for qualified immunity, courts engage in a two-part inquiry:

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whether the facts show that the defendant violated a constitutional right, and whether the right

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was clearly established at the time of the defendant's purported misconduct. Delia v. City of

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Rialto, 621 F.3d 1069, 1074 (9th Cir.2010) (quoting Pearson v. Callahan, 555 U.S. 223, 232,

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129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). A right is clearly established if the contours of the

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right are so clear that a reasonable official would understand his conduct was unlawful in the

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situation he confronted. Dunn v. Castro, 621 F.3d 1196, 1199–1200 (9th Cir.2010) (citation

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omitted) (internal quotation marks omitted). This standard ensures that government officials

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are on notice of the illegality of their conduct before they are subjected to suit. Hope v. Pelzer,

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536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citation omitted). “This is not to

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say that an official action is protected by qualified immunity unless the very action in question

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has previously been held unlawful....” Id.

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The Supreme Court found that the sequence of this two-step inquiry is no longer “an

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inflexible requirement.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. Thus, it is within the Court's

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discretion to decide which step to address first. Id.; see Delia, 621 F.3d at 1075; Bull v. City &

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County of San Francisco, 595 F.3d 964, 971 (9th Cir.2010). If the defendants' conduct does not

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amount to a constitutional violation, or the violation was not clearly established, or the

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defendants' actions reflect a reasonable mistake as to what the law requires, they are entitled to

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qualified immunity. Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir.2007); see

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James v. Rowlands, 606 F.3d 646, 651 (9th Cir.2010) (quoting Pearson, 555 U.S. at 235, 129

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S.Ct. 808).

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Federal Rules of Evidence – Prior Conviction and Bad Acts

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F.

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Defendants assert that they will not try to admit Plaintiff‟s abstract of judgment, or that

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of any incarcerated witness, if each answers truthfully that they have been convicted of a

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felony.

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Defendants shall file a short brief at the time for the filing of motions in limine,

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explaining what prior act they want to admit, the type of felony, the date of the felony, and an

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explanation why disclosure of the act or felony is more probative that prejudicial.

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VI.

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Abandoned Issues
Defendants have not abandoned any issues or affirmative defenses.

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abandoned his deliberate indifference claim brought in the initial Complaint.

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VII.

Plaintiff has

Witnesses

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The following is a list of witnesses that the parties expect to call at trial, including

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rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN

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THIS 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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AMANIFEST INJUSTICE.@ Fed. R. Civ. P. 16(e); Local Rule 281(b)(10).

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A.

Plaintiff=s Witnesses

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1.

Himself, Plaintiff Johnathan Hill

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2.

Inmate Dewayne Thompson, T-12115

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B.

Defendants’ Witnesses

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1.

Correctional Officer A. Rivas, Defendant

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2.

Correctional Officer J. Clark, Defendant

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3.

Correctional Lieutenant K. Weatherford, CSP-Corcoran

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4.

Correctional Lieutenant E. Silva, CSP-Corcoran

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5.

Correctional Sergeant T. Lawson, CSP-Corcoran

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6.

Correctional Sergeant W. Rasley, CSP-Corcoran

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7.

Correctional Officer L. Aragon, CSP-Corcoran

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8.

Correctional Officer A. Tirado, CSP-Corcoran
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9.

Correctional Officer J. Magana, CSP-Corcoran

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10.

Correctional Officer L. Flores, CSP-Corcoran

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Dr. R. Gill, CSP-Corcoran

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12.

Registered Nurse J. Johnson, CSP-Corcoran

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13.

Licensed Vocational Nurse S. Gonzales, CSP-Corcoran

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14.

Psychiatric Technician M. Lewis, CSP-Corcoran

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15.

Psychiatric Technician T. Zellers, CSP-Corcoran

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To avoid any unnecessary delay and expense, Defendants request that documents from

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Plaintiff‟s central and medical files, and those of any inmate witnesses, be authenticated by

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declarations from the appropriate records custodians. If the documents are not authenticated in

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this manner, Defendants would call the following additional witnesses:

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16.

The custodian of records for Plaintiff‟s central inmate file

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17.

The custodian of records for Plaintiff‟s medical file

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18.

The custodians of records who maintain the central inmate files for any

15
16

inmate witnesses
VIII. Exhibits

17

The following is a list of documents or other exhibits that the parties expect to offer at

18

trial.

19

ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS

20

ORDER SHOULD BE MODIFIED TO PREVENT AMANIFEST INJUSTICE.@ Fed. R. Civ.

21

P. 16(e); Local Rule 281(b)(11).

22

NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE

A.

Plaintiff=s Exhibits

23

1.

Plaintiff‟s initial Complaint.

24

2.

Defendant Rivas‟ responses to interrogatories.

25

3.

Defendants‟ Answer and demand for jury trial.

26

4.

Defendants‟ responses to Plaintiff‟s requests for production of

27
28

documents.
///
14

1

5.

2

Letters, grievances, and inmate appeals submitted by Plaintiff in
connection with the subject matter of this lawsuit.

3

6.

4

All documents in Plaintiff‟s possession related to the issues that Plaintiff
alleges are the subject matter of this lawsuit, including damages.

5

7.

All written statements that Plaintiff has received from any person

6

concerning the issues he claims are the subject matter of this lawsuit,

7

including damages.

8

8.

9

including medical records.

10

9.

11
12

All documents in Plaintiff‟s possession that he intends to use at trial,

Operational Procedure No. 220. Administrative Segregation Units.
ASU.

B.

Defendants’ Exhibits

13

1.

Plaintiff‟s Abstract of Judgment.

14

2.

Inmate/Parolee Appeal Log No. COR-12-01099 (CDCR 602).

15

3.

Confidential Supplement to Inmate/Parolee Appeal Log No. CSPC-7-12-

16
17

01099, dated March 23, 2012 (redacted).
4.

Use of Force video interview prepared by Lieutenant E. Silva and

18

Sergeant T. Lawson in connection with Inmate/Parolee Appeal Log No.

19

CSPC-7-12-01099.

20

5.

21
22

prepared by Psychiatric Technician M. Lewis, dated January 29, 2012.
6.

23
24

Medical Report of Injury or Unusual Occurrence (CDCR 7219),

Medical Report of Injury or Unusual Occurrence (CDCR 7219),
prepared by Psychiatric Technician T. Zeller, dated February 1, 2012.

7.

Medical Report of Injury or Unusual Occurrence (CDCR 7219),

25

prepared by Licensed Vocational Nurse S. Gonzales, dated February 1,

26

2012.

27
28

8.

PPAS/Custody Sign-In/Out Sheet, dated January 29, 2012, for 3A04
Third Watch.
15

1

9.

2

Patient/Inmate Health Care Appeal Log No. COR SC 12001170/COR
HC 12049495 (CDCR 602 HC).

3

10.

4

Cell Search/Locker Search/Property Removed Form, dated January 29,
2012.

5

11.

6

DVD Interview of Inmate Hill, conducted by Lieutenant E. Silva, dated
February 1, 2012.

7

12.

A diagram of CSP-Corcoran‟s Facility 3A04.

8

13.

Photographs of Facility 3A near the location of the incident at issue

9

14.

Documents from Plaintiff‟s medical file, including:

10

(1)

11

Triage and Treatment Services Flow Sheet, prepared by
Registered Nurse J. Johnson, dated February 1, 2012.

12

(2)

13

Medical Progress Note, prepared by Dr. R. Gill, dated February
1, 2012.

14

(3)

15

Health Care Services Request Form, prepared by Plaintiff, dated
January 30, 2012.

16

15.

17

Sections of Title 15 of the California Code of Regulations in effect in
2012 governing the use of force and inmate escorts.

18

16.

19

Sections of the Department Operations Manual (DOM) in effect in 2012
governing the use of force and inmate escorts.

20

17.

21

Operational Procedures (OP) in place at CSP-Corcoran in 2012
governing the use of force and inmate escorts.

22

18.

23

Post Orders for the positions of CSP-Corcoran Ad Seg Search and Escort
Officer and Floor Officer, in effect in January 2012.

24

19.

Select excerpts from Plaintiff‟s deposition, taken January 29, 2015.

25

20.

Select excerpts from Plaintiff‟s complaint (ECF No. 1).

26

21.

Abstract of Judgment for Plaintiff‟s inmate witness, Dewayne

27
28

Thompson.
///
16

1

IX.

2

Discovery Documents To Be Used At Trial
A.

Plaintiff expects to use these Discovery Documents:

3

1.

Plaintiff‟s First Set of Interrogatories, p. 2 lines 10-20; p.3 lines 1-6.

4

2.

Plaintiff‟s Second Set of Interrogatories, p. 1 lines 24, 27; p. 2 lines 2, 4,

5

6, 13, 15, 21-22, 24-26; p. 3 lines 5-6, 12.

6

3.

7

Plaintiff‟s Third Set of Interrogatories, p. 2 lines 2-3, 5-6, 8, 15-16, 18,
20, 22; p. 3 line 3.

8

4.

9

Plaintiff‟s Fourth Set of Interrogatories, p. 1 line 26; p. 2 lines 7-8, 10,
17-18.

10

B.

If Plaintiff introduces any of Defendants‟ discovery responses into evidence, as

11

his pretrial statement suggests he will, see ECF No. 49 at 7-9, Defendants may admit any

12

remaining portion of those responses that are needed to place the evidence into context. See

13

Fed. R. Evid. 106.

14

X.

Further Discovery or Motions

15

A.

16

Plaintiff asserts that he may have to conduct additional discovery to locate one of his

17

witnesses. Plaintiff asserts that he did not do this during initial discovery because there was no

18

sure chance that the witness would be at the discovered address today. No further discovery is

19

needed to locate Plaintiff‟s incarcerated witness.

20

Dewayne Thompson, T-12115. With this information, the Court has determined that Dewayne

21

Thompson is presently housed at California State Prison-Sacramento in Represa, California.

22

23

Plaintiff

Plaintiff has identified the witness as

Also, Plaintiff intends to request a Court-appointed attorney by a proper motion. The
Court will consider such motion once filed.

24

B.

25

Defendants anticipate filing motions in limine. If appropriate, Defendants will also

26

move for dismissal under Rule 50 of the Federal Rules of Civil Procedure at the close of

27

evidence.

28

///

Defendants

17

1

To the extent Plaintiff has indicated in his pretrial statement that he would like to

2

conduct additional discovery, Defendants argue that his request should be denied. Defendants

3

argue that the Court‟s discovery and scheduling order afforded Plaintiff ample time –

4

approximately eight months – to conduct discovery in this case. Defendants assert that indeed,

5

Plaintiff propounded multiple sets of interrogatories and requests for production of documents

6

during that time. Defendants argue that discovery is now closed, and it should remain closed.

7

XI.

Stipulations

8

A.

9

No stipulations have been requested or offered for pretrial or trial purposes.

Plaintiff

10

B.

11

Defendants will confer with Plaintiff about stipulating to the authenticity of the

12

documents identified in Sections 10 and 11, above. Defendants will also confer with Plaintiff

13

about preparing joint trial exhibits.

Defendants

14

In their pretrial statement, Defendants indicated they were willing to stipulate they were

15

acting under color of state law while on duty on May 26, 2009. At the telephonic hearing on

16

November 19, 2014, Plaintiff so stipulated. Thus, the parties have agreed that Defendants

17

Fernando and Jericoff acted under color of state law while on duty on May 26, 2009.

18

C.

CAUTION: The parties are cautioned that if any stipulation is obtained in the

19

future, it must be in writing, and must be provided to the Courtroom Clerk no later than

20

December 14, 2015 at 12:00 p.m (noon).

21

XII.

Amendments/Dismissals

22

A.

23

There were not any requested amendments to pleadings, dismissals, additions or

24

Plaintiff

substitutions of parties or dispositions as to defaulting parties, on Plaintiff‟s part.

25

B.

26

The Court‟s screening order dismissed Plaintiff‟s Eighth Amendment claims against

Defendants

27

defendants Flores, Aragon, Tirado, Magana, and Rasley.

28

///
18

1

XIII. Settlement Negotiations

2

A.

3

Plaintiff believes that settlement negotiations between the parties, and/or a Court

4

Plaintiff

settlement conference under Local Rule 270, would be helpful.

5

B.

6

Defendants report that they considered the possibility of settling this case out-of-court

7

for a nominal sum. However, Plaintiff owes approximately $10,200 in restitution, which

8

makes resolution of this case without a trial very unlikely. Defendants therefore decided that

9

this case was not appropriate for settlement, and that the case should instead be tried to a jury.

10

Defendants

XIV. Agreed Statement

11

Plaintiff does not know whether presentation of all or part of the action upon an Agreed

12

Statement of Facts is feasible and advisable, and may be redundant in light of Plaintiff‟s

13

undisputed facts above.

14
15

Defendants are willing to prepare a proposed agreed statement of the case.
XV.

16
17

Plaintiff does not know whether separate trials of any of the issues is feasible and
advisable.

18
19

Defendants request that the trial be bifurcated, with the issue of punitive damages being
tried separately, if necessary.

20
21
22

The Court will hear argument on bifurcation at the Trial Confirmation Hearing on
November 19, 2015.
XVI. Impartial Experts - Limitation Of Experts

23
24

Separate Trial Of Issues

Plaintiff does not know whether appointment by the Court of impartial expert witnesses
or limitation of the number of expert witnesses is advisable.

25

Defendants do not anticipate a need for the Court to appoint any impartial expert

26

witnesses, or to place any limitation of the number of expert witnesses.

27

///

28

///
19

1

XVII. Attorneys= Fees

2

A.

3

Not applicable. Because Plaintiff is not represented by an attorney, he is not entitled to

4

recover attorney=s fees if he prevails. Gonzales v. Kangas, 814 F.2d 1411, 1412 (9th Cir.

5

1987).

Plaintiff

6

B.

7

If Defendants win at trial, they will request an award of costs, but not attorney‟s fees.

8

XVIII. Trial Exhibits

9

Plaintiff does not anticipate needing special handling of any of his exhibits.
Defendants will have exhibits they wish to present on the Court‟s ELMO projector and

10
11

Defendants

AV equipment.

12

The practice of the Court is to either return trial exhibits to the parties or discard them

13

after trial. It is the parties‟ responsibility to retain exhibits for purposes of appeal.

14

XIX. Miscellaneous

15

Defendants assert that trial will be expedited if Plaintiff stipulates to the authenticity of

16

the records identified in Sections 10 and 11, above.

17

XX. Further Trial Preparation

18

A.

19

Any party may file a motion in limine, which is a procedural mechanism to limit in

20

advance testimony or evidence in a particular area. U.S. v. Heller, 551 F.3d 1108, 1111 (9th

21

Cir. 2009) (quotation marks omitted). In the case of a jury trial, the Court=s ruling gives

22

Plaintiff and Defendants‟ counsel advance notice of the scope of certain evidence so that

23

admissibility is settled before attempted use of the evidence before the jury. Id. at 1111-1112

24

(quotation marks omitted).

Motions In Limine Hearing and Briefing Schedule

25

All motions in limine must be served on the other party, and filed with the Court, by

26

November 23, 2015. Any motion in limine must clearly identify the nature of the evidence that

27

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

28

///
20

1
2
3
4
5
6

Any opposition to a motion in limine must be served on the other party, and filed with
the Court, by December 12, 2015.
If any party files a motion in limine, the Court will hear and decide such motions on the
morning of trial at 8:30 a.m.
Whether or not a party files a motion in limine, that party may still object to the
introduction of evidence during the trial.

7

B.

8

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

9

Other

they wish to file trial briefs, they must do so on or before December 14, 2015.

10

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

11

review on the morning of trial. If the parties wish to submit a proposed verdict form for

12

consideration, they must do so on or before December 14, 2015.

13

If Plaintiff wishes to file proposed jury instructions, he must do so on or before

14

December 14, 2015. Defendants shall file proposed jury instructions as provided in Local Rule

15

163 on or before December 14, 2015. In selecting proposed instructions, the parties shall use

16

Ninth Circuit Model Civil Jury Instructions to the extent possible. All jury instructions must be

17

submitted in duplicate: One set will indicate which party proposes the instruction, with each

18

instruction numbered or lettered, and containing citation of supporting authority, and the

19

customary legend, i.e., AGiven, Given as Modified, or Refused,@ showing the Court=s action,

20

with regard to each instruction. One set will be an exact duplicate of the first, except it will not

21

contain any identification of the party offering the instruction or supporting authority or the

22

customary legend of the Court's disposition. Defendants shall provide the Court with a copy of

23

their proposed jury instructions via e-mail at: [e-mail].

24
25

Proposed voir dire questions, if any, shall be filed on or before December 14, 2015.
Local Rule 162.1.

26

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

27

suitable for reading to the jury at the outset of jury selection on or before December 14, 2015.

28

The Court will consider the parties= statements but will draft its own statement. The parties will
21

1

be provided with the opportunity to review the Court=s prepared statement on the morning of

2

trial.

3

The original and two copies of all trial exhibits along with exhibit lists shall be

4

submitted to Courtroom Deputy Amanda Martinez no later than December 14, 2015. All of

5

Plaintiff=s exhibits shall be pre-marked with the prefix APX@ and numbered sequentially

6

beginning with 100 (e.g., PX-100, PX-101, etc.). All of Defendants‟exhibits shall be pre-

7

marked with the prefix ADX@ and numbered sequentially beginning with 200 (e.g., DX-200, DX

8

201, etc.).

9

Any party wishing to use a videotape or DVD for any purpose during trial shall lodge a

10

copy of the videotape with Courtroom Deputy Amanda Martinez by 4:00 p.m. on December

11

14, 2015. If a written transcript of audible words on the tape or DVD is available, the Court

12

requests that the transcript be lodged with the Court, solely for the aid of the Court.

13

If any party intends to use a laptop computer for presentation of evidence or intends to

14

use any other audio/visual equipment belonging to the Court, that party shall contact

15

Courtroom Deputy Amanda Martinez at least one week prior to trial so that any necessary

16

arrangements and/or training may be scheduled.

17

XXI. Objections to Pretrial Order

18

Any party may, within ten (10) calendar days after the date of service of this Order,

19

file and serve written objections to any of the provisions of this Order. Such objections shall

20

specify the requested modifications, corrections, additions or deletions.

21

Failure to comply with all provisions of this order may be grounds for the imposition of

22

sanctions on any and all counsel as well as on any party who causes non-compliance with this

23

order.

24
25
26

IT IS SO ORDERED.
Dated:

November 2, 2015

/s/
UNITED STATES MAGISTRATE JUDGE

27
28
22