Reamel v. Harrington et al

Filing 34

SCHEDULING ORDER and ORDER DIRECTING Clerk to Send Plaintiff a Copy of Local Rule 281(b), signed by Magistrate Judge Erica P. Grosjean on 5/2/17. Exhaustion Motion Deadline: August 25, 2017; Telephonic Discovery Status Conference: September 11, 2 017, Time: 1:30 p.m. Courtroom 10 (EPG); Nonexpert Discovery Cut-off: November 17, 2017; Dispositive Motion Filing Deadline: December 20, 2017; Telephonic Trial Confirmation Hearing: October 11, 2018 Time: 8:15 a.m. Courtroom 4 (LJO); Jury Trial: December 11, 2018 Time: 8:30 a.m. Courtroom 4 (LJO). (Attachments: # 1 Local Rule 281) (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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REAMEL CURTIS,

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Plaintiff,

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J. GONZALES and J. BUGARIN,
Defendants.

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SCHEDULING ORDER AND ORDER
DIRECTING CLERK TO SEND PLAINTIFF
A COPY OF LOCAL RULE 281(b)
Exhaustion Motion
Deadline:

v.

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CASE NO. 1:15-cv-00553-LJO-EPG (PC)

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August 25, 2017

Telephonic Discovery
Status Conference:
September 11, 2017
Time: 1:30 p.m.
Courtroom 10 (EPG)
Nonexpert
Discovery Cut-off: November 17, 2017
Dispositive Motion
Filing Deadline:

December 20, 2017

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Telephonic Trial
Confirmation Hearing: October 11, 2018
Time: 8:15 a.m.
Courtroom 4 (LJO)

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Jury Trial:

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December 11, 2018
Time: 8:30 a.m.
Courtroom 4 (LJO)

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This Court conducted a scheduling conference on May 2, 2017. Plaintiff Reamel Curtis
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telephonically appeared on his own behalf. Counsel Lucas L. Hennes telephonically appeared on
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behalf of Defendants. Pursuant to Fed. R. Civ. P. 16(b), this Court now sets a schedule for this
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action.
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I.

DISCOVERY PROCEDURES

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The parties are now granted leave to serve discovery in addition to that provided as part of
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initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall
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proceed as follows:
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1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil
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Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed

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with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that

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discovery requests shall not be filed unless or until there is a proceeding in which the

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document or proof of service is at issue). A party may serve on any other party no

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more than 15 interrogatories, 15 requests for production of documents, and 10 requests

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for admission. On motion, these limits may be increased for good cause.

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2. Plaintiff has already served discovery on Defendants, including interrogatories.

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Plaintiff served more than 15 interrogatories on each defendant. As discussed at

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the scheduling conference, Plaintiff has seven days from May 2, 2017, to notify

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Defendants which of the fifteen interrogatories each defendant is to answer. If

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Plaintiff does not specify which interrogatories he wants each defendant to

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answer, each defendant only needs to answer the first fifteen interrogatories that

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were served on that defendant.

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3. Responses to written discovery requests shall be due forty-five (45) days after the

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

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

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

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

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

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demand.1

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

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

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

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that responses are due. Failure to provide a privilege log within this time shall result

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in a waiver of the privilege. To the extent the requesting party disputes whether a

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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.”).

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

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

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

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

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

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the litigation against the reasons that are asserted in defending their confidentiality. In

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any such request for in camera review, the party requesting review shall identify, with

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specificity, the document(s) for which review is sought.

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5. The parties are required to act in good faith during the course of discovery and the

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failure to do so may result in the payment of expenses pursuant to Federal Rule of

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Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal

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Rules of Civil Procedure or the Local Rules.

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6. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose

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Plaintiff and any other witness confined in a prison on the condition that, at least

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fourteen (14) days before such a deposition, Defendant(s) serve all parties with the

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

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

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

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

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

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

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

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

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

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7. With the Court’s permission, Plaintiff may serve third party subpoenas, including on

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the California Department of Corrections and Rehabilitation and/or the Office of the

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Inspector General if Plaintiff seeks documents from them and the entities are not

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presently defendants in this case. To issue a subpoena on these entities, or any other
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third parties, Plaintiff must file a request for the issuance of a subpoena duces tecum

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

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

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

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

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only if the documents sought from the non-party are not equally available to Plaintiff

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and are not obtainable from Defendant(s) through a request for production of

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

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

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

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The documents requested must also fall within the scope of discovery allowed in this

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action. See Fed. R. Civ. P. 26(b)(1).

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8. A discovery conference has been set for September 11, 2017, at 1:30 p.m. Parties

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

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

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

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

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

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

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

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

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

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discovery disputes at the discovery conference.

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II.

PAGE LIMITS

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The parties are advised that unless prior leave of the Court is obtained before the filing

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deadline,2 all moving and opposition briefs or legal memoranda filed in civil cases before

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Magistrate Judge Grosjean shall not exceed twenty-five (25) pages. Reply briefs by the moving

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Parties may seek by filing a short motion.

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party shall not exceed ten (10) pages. These page limits do not include exhibits.

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III.

NON-EXPERT DISCOVERY DEADLINE

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The deadline for the completion of all non-expert discovery is November 17, 2017. All

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

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discovery conference.

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IV.

EXPERT DISCLOSURES

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At the scheduling conference, all parties stated that they did not intend to use expert

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witnesses in this case. Therefore, absent a showing of good cause, the parties will not be allowed

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to use expert witnesses in this case.

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V.

EXHAUSTION MOTIONS

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The deadline for Defendant(s) to present any challenge for failure to exhaust

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administrative remedies is August 25, 2017. The exhaustion issue may be raised only by filing a

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motion for summary judgment under Fed. R. Civ. P. 56. Failure to raise the exhaustion issue by

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the deadline will result in waiver of the defense. See Albino v. Baca, 747 F.3d 1162, 1170 (9th

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Cir.) (providing that the exhaustion question should be decided as early as feasible), cert. denied

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sub nom. Scott v. Albino, 135 S. Ct. 403, 190 L. Ed. 2d 307 (2014).

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VI.

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

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dispositive motions based on failure to exhaust administrative remedies) is December 20, 2017.

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VII.

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

VIII. MAGISTRATE JUDGE JURISDICTION

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The parties have declined the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §

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636(c). (ECF No. 29).

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IX.

TELEPHONIC TRIAL CONFIRMATION HEARING

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The Telephonic Trial Confirmation Hearing is set for October 11, 2018, at 8:15 a.m., in

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Courtroom 4, before District Judge Lawrence J. O’Neill. Counsel for Defendant(s) is required to

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arrange for the participation of Plaintiff in the Telephonic Trial Confirmation Hearing and to
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initiate the telephonic hearing by arranging a one line conference call and telephoning the Court

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at [phone].

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

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

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

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showing are outlined in detail below.

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

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pretrial statement.

Plaintiff is advised that failure to comply with the

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

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

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

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

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witness testimony.

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

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1.

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

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to

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Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give

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testimony cannot come to court unless this Court orders the warden or other custodian to permit

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the witness to be transported to court. This Court will not issue such an order unless it is satisfied

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that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual

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knowledge of relevant facts.

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A party intending to introduce the testimony of incarcerated witnesses who have agreed

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voluntarily to attend the trial must serve and file concurrent with the pretrial statement a written

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motion for a court order requiring that such witnesses be brought to court at the time of trial. The

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motion must: (1) state the name, address, and prison identification number of each such witness;

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

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

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for Attendance of Incarcerated Witnesses.”

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The willingness of the prospective witness can be shown in one of two ways: (1) the party
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himself can swear by declaration under penalty of perjury that the prospective witness has

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

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

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

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

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without being subpoenaed.

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The prospective witness’s actual knowledge of relevant facts can be shown in one of two

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ways: (1) if the party has actual firsthand knowledge that the prospective witness was an

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eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in plaintiff’s cell

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and, at the time, plaintiff saw that a cellmate was present and observed the incident, plaintiff may

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

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

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

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

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

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incident, when and where it occurred, who was present, and how the prospective witness

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happened to be in a position to see or to hear what occurred at the time it occurred.

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The Court will review and rule on the motion for attendance of incarcerated witnesses,

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specifying which prospective witnesses must be brought to Court. Subsequently, the Court will

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issue the order necessary to cause the witness’s custodian to bring the witness to Court.

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Motions for the attendance of incarcerated witnesses, if any, must be filed on or before
August 10, 2018. Oppositions, if any, must be filed on or before September 10, 2018.
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Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who

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refuse to testify voluntarily, the party should submit with his pretrial statement a motion for the

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

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

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voluntarily.
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3.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to

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

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

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be sought or obtained from the Court.

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Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify

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voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the

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party seeking the witness’s presence must tender an appropriate sum of money for the witness.

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Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness

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fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821.

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If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who

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

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

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

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

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

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unincarcerated witness by the United States Marshal unless the money order is tendered to the

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Court. Because no statute authorizes the use of public funds for these expenses in civil cases, the

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tendering of witness fees and travel expenses is required even if the party was granted leave to

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proceed in forma pauperis.

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If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse to

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testify voluntarily, Plaintiff must submit the money orders to the Court no later than September

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10, 2018. In order to ensure timely submission of the money orders, Plaintiff must notify the

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Court of the names and locations of his witnesses, in compliance with step 4 above, no later than

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August 10, 2018.

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

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August 10, 2018. Defendant(s) shall file and serve a pretrial statement as described in this order

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on or before September 10, 2018.
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The parties are advised that failure to file pretrial statements as required by this order may

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

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entry of default.

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

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TRIAL DATE
A 1-3 day jury trial is set for December 11, 2018 at 8:30 a.m., in Courtroom 4, before

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District Judge Lawrence J. O’Neill.

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XI.

EFFECT OF THIS ORDER

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This order represents the Court and the parties’ best estimated schedule to complete this

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case. Any party unable to comply with the dates outlined in this order shall immediately file an

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appropriate motion or stipulation identifying the requested modification(s).

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The dates set in this Order are considered to be firm and will not be modified absent a

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

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

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

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IT IS SO ORDERED.
Dated:

May 2, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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