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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1 2 IN THE UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 REAMEL CURTIS, 6 Plaintiff, 7 8 10 J. GONZALES and J. BUGARIN, Defendants. 12 SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND PLAINTIFF A COPY OF LOCAL RULE 281(b) Exhaustion Motion Deadline: v. 9 11 CASE NO. 1:15-cv-00553-LJO-EPG (PC) 13 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 14 16 Telephonic Trial Confirmation Hearing: October 11, 2018 Time: 8:15 a.m. Courtroom 4 (LJO) 17 Jury Trial: 15 18 December 11, 2018 Time: 8:30 a.m. Courtroom 4 (LJO) 19 This Court conducted a scheduling conference on May 2, 2017. Plaintiff Reamel Curtis 20 telephonically appeared on his own behalf. Counsel Lucas L. Hennes telephonically appeared on 21 behalf of Defendants. Pursuant to Fed. R. Civ. P. 16(b), this Court now sets a schedule for this 22 action. 23 I. DISCOVERY PROCEDURES 24 The parties are now granted leave to serve discovery in addition to that provided as part of 25 initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall 26 proceed as follows: 27 1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil 28 1 1 Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed 2 with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that 3 discovery requests shall not be filed unless or until there is a proceeding in which the 4 document or proof of service is at issue). A party may serve on any other party no 5 more than 15 interrogatories, 15 requests for production of documents, and 10 requests 6 for admission. On motion, these limits may be increased for good cause. 7 2. Plaintiff has already served discovery on Defendants, including interrogatories. 8 Plaintiff served more than 15 interrogatories on each defendant. As discussed at 9 the scheduling conference, Plaintiff has seven days from May 2, 2017, to notify 10 Defendants which of the fifteen interrogatories each defendant is to answer. If 11 Plaintiff does not specify which interrogatories he wants each defendant to 12 answer, each defendant only needs to answer the first fifteen interrogatories that 13 were served on that defendant. 14 3. 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.1 21 4. 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 that responses are due. Failure to provide a privilege log within this time shall result 25 in a waiver of the privilege. To the extent the requesting party disputes whether a 26 1 27 28 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 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 the litigation against the reasons that are asserted in defending their confidentiality. In 7 any such request for in camera review, the party requesting review shall identify, with 8 specificity, the document(s) for which review is sought. 9 5. The parties are required to act in good faith during the course of discovery and the 10 failure to do so may result in the payment of expenses pursuant to Federal Rule of 11 Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal 12 Rules of Civil Procedure or the Local Rules. 13 6. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose 14 Plaintiff and any other witness confined in a prison on the condition that, at least 15 fourteen (14) days before such a deposition, Defendant(s) serve all parties with the 16 notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 17 participate in a properly noticed deposition could result in sanctions against Plaintiff, 18 including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule 19 of Civil Procedure 30(b)(4), the parties may take any deposition under this section by 20 video conference without a further motion or order of the Court. Due to security 21 concerns and institutional considerations not applicable to Defendant(s), Plaintiff must 22 seek leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of 23 Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion 24 for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary. 25 7. With the Court’s permission, Plaintiff may serve third party subpoenas, including on 26 the California Department of Corrections and Rehabilitation and/or the Office of the 27 Inspector General if Plaintiff seeks documents from them and the entities are not 28 presently defendants in this case. To issue a subpoena on these entities, or any other 3 1 third parties, Plaintiff must file a request for the issuance of a subpoena duces tecum 2 with the Court. If the Court approves the request, it may issue Plaintiff a subpoena 3 duces tecum, commanding the production of documents from a non-party, and may 4 command service of the subpoena by the United States Marshal Service. Fed. R. Civ. 5 P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request 6 only if the documents sought from the non-party are not equally available to Plaintiff 7 and are not obtainable from Defendant(s) through a request for production of 8 documents. Fed. R. Civ. P. 34. In any request for a subpoena, Plaintiff must: (1) 9 identify with specificity the documents sought and from whom, and (2) make a 10 showing in the request that the records are only obtainable through that third party. 11 The documents requested must also fall within the scope of discovery allowed in this 12 action. See Fed. R. Civ. P. 26(b)(1). 13 8. A discovery conference has been set for September 11, 2017, at 1:30 p.m. Parties 14 have leave to appear by phone. To join the conference, each party is directed to call 15 the toll-free number (888) 251−2909 and use Access Code 1024453. Up until three 16 weeks before the discovery conference, the parties may file a motion to compel further 17 discovery responses. One week before the discovery conference, the responding party 18 may file a response to the motion to compel. The motion should include a copy of the 19 request(s) and any response to the request(s) at issue. Unless there is a need for 20 discovery prior to the discovery conference, motions to compel will not be considered 21 until the discovery conference. Motions to compel will not be permitted after the 22 discovery conference absent good cause. The parties should be prepared to address all 23 discovery disputes at the discovery conference. 24 II. PAGE LIMITS 25 The parties are advised that unless prior leave of the Court is obtained before the filing 26 deadline,2 all moving and opposition briefs or legal memoranda filed in civil cases before 27 Magistrate Judge Grosjean shall not exceed twenty-five (25) pages. Reply briefs by the moving 28 2 Parties may seek by filing a short motion. 4 1 party shall not exceed ten (10) pages. These page limits do not include exhibits. 2 III. NON-EXPERT DISCOVERY DEADLINE 3 The deadline for the completion of all non-expert discovery is November 17, 2017. All 4 non-expert discovery must be provided by this date, including discovery compelled following the 5 discovery conference. 6 IV. EXPERT DISCLOSURES 7 At the scheduling conference, all parties stated that they did not intend to use expert 8 witnesses in this case. Therefore, absent a showing of good cause, the parties will not be allowed 9 to use expert witnesses in this case. 10 V. EXHAUSTION MOTIONS 11 The deadline for Defendant(s) to present any challenge for failure to exhaust 12 administrative remedies is August 25, 2017. The exhaustion issue may be raised only by filing a 13 motion for summary judgment under Fed. R. Civ. P. 56. Failure to raise the exhaustion issue by 14 the deadline will result in waiver of the defense. See Albino v. Baca, 747 F.3d 1162, 1170 (9th 15 Cir.) (providing that the exhaustion question should be decided as early as feasible), cert. denied 16 sub nom. Scott v. Albino, 135 S. Ct. 403, 190 L. Ed. 2d 307 (2014). 17 VI. 18 DISPOSITIVE MOTIONS DEADLINE The deadline for filing all dispositive motions pursuant to Fed. R. Civ. P. 56 (except for 19 dispositive motions based on failure to exhaust administrative remedies) is December 20, 2017. 20 VII. 21 22 SETTLEMENT CONFERENCE The Court is not setting a settlement conference at this time. VIII. MAGISTRATE JUDGE JURISDICTION 23 The parties have declined the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 24 636(c). (ECF No. 29). 25 IX. TELEPHONIC TRIAL CONFIRMATION HEARING 26 The Telephonic Trial Confirmation Hearing is set for October 11, 2018, at 8:15 a.m., in 27 Courtroom 4, before District Judge Lawrence J. O’Neill. Counsel for Defendant(s) is required to 28 arrange for the participation of Plaintiff in the Telephonic Trial Confirmation Hearing and to 5 1 initiate the telephonic hearing by arranging a one line conference call and telephoning the Court 2 at (559) 499-5680. 3 In addition to the matters already required to be addressed in the pretrial statement in 4 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 5 order to obtain the attendance of witnesses. The procedures and requirements for making such a 6 showing are outlined in detail below. 7 procedures set forth below may result in the preclusion of any or all witnesses named in his 8 pretrial statement. Plaintiff is advised that failure to comply with the 9 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 10 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 11 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 12 produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or 13 witness testimony. 14 procedures to ensure that the witnesses will be at the trial and available to testify. 15 1. If Plaintiff wants to call witnesses to testify, he must follow certain Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 16 Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give 17 testimony cannot come to court unless this Court orders the warden or other custodian to permit 18 the witness to be transported to court. This Court will not issue such an order unless it is satisfied 19 that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual 20 knowledge of relevant facts. 21 A party intending to introduce the testimony of incarcerated witnesses who have agreed 22 voluntarily to attend the trial must serve and file concurrent with the pretrial statement a written 23 motion for a court order requiring that such witnesses be brought to court at the time of trial. The 24 motion must: (1) state the name, address, and prison identification number of each such witness; 25 and (2) be accompanied by declarations showing that each witness is willing to testify and that 26 each witness has actual knowledge of relevant facts. The motion should be entitled “A Motion 27 for Attendance of Incarcerated Witnesses.” 28 The willingness of the prospective witness can be shown in one of two ways: (1) the party 6 1 himself can swear by declaration under penalty of perjury that the prospective witness has 2 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 3 which declaration the party must state when and where the prospective witness informed the party 4 of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 5 perjury by the prospective witness, in which the witness states that he or she is willing to testify 6 without being subpoenaed. 7 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 8 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 9 eyewitness or an ear-witness to the relevant facts (i.e., if an incident occurred in plaintiff’s cell 10 and, at the time, plaintiff saw that a cellmate was present and observed the incident, plaintiff may 11 swear to the cellmate’s ability to testify), the party himself can swear by declaration under penalty 12 of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a 13 declaration signed under penalty of perjury by the prospective witness in which the witness 14 describes the relevant facts to which the prospective witness was an eye- or ear witness. Whether 15 the declaration is made by the party or by the prospective witness, it must be specific about the 16 incident, when and where it occurred, who was present, and how the prospective witness 17 happened to be in a position to see or to hear what occurred at the time it occurred. 18 The Court will review and rule on the motion for attendance of incarcerated witnesses, 19 specifying which prospective witnesses must be brought to Court. Subsequently, the Court will 20 issue the order necessary to cause the witness’s custodian to bring the witness to Court. 21 22 23 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. 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 24 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who 25 refuse to testify voluntarily, the party should submit with his pretrial statement a motion for the 26 attendance of such witnesses. Such motion should be in the form described above. In addition, 27 the party must indicate in the motion that the incarcerated witnesses are not willing to testify 28 voluntarily. 7 1 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 2 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 3 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need 4 be sought or obtained from the Court. 5 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 6 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 7 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the 8 party seeking the witness’s presence must tender an appropriate sum of money for the witness. 9 Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness 10 fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 11 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 12 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 13 location of each unincarcerated witness. The Court will calculate the travel expense for each 14 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, 15 submit a money order made payable to the witness for the full amount of the witness’s travel 16 expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 17 unincarcerated witness by the United States Marshal unless the money order is tendered to the 18 Court. Because no statute authorizes the use of public funds for these expenses in civil cases, the 19 tendering of witness fees and travel expenses is required even if the party was granted leave to 20 proceed in forma pauperis. 21 If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse to 22 testify voluntarily, Plaintiff must submit the money orders to the Court no later than September 23 10, 2018. In order to ensure timely submission of the money orders, Plaintiff must notify the 24 Court of the names and locations of his witnesses, in compliance with step 4 above, no later than 25 August 10, 2018. 26 Plaintiff shall file and serve a pretrial statement as described in this order on or before 27 August 10, 2018. Defendant(s) shall file and serve a pretrial statement as described in this order 28 on or before September 10, 2018. 8 1 The parties are advised that failure to file pretrial statements as required by this order may 2 result in the imposition of appropriate sanctions, which may include dismissal of the action or 3 entry of default. 4 5 The Clerk is DIRECTED to send Plaintiff a copy of Local Rule 281(b). X. 6 TRIAL DATE A 1-3 day jury trial is set for December 11, 2018 at 8:30 a.m., in Courtroom 4, before 7 District Judge Lawrence J. O’Neill. 8 XI. EFFECT OF THIS ORDER 9 This order represents the Court and the parties’ best estimated schedule to complete this 10 case. Any party unable to comply with the dates outlined in this order shall immediately file an 11 appropriate motion or stipulation identifying the requested modification(s). 12 The dates set in this Order are considered to be firm and will not be modified absent a 13 showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the 14 civil case docket, this Court disfavors requests to modify established dates. 15 Failure to comply with this order may result in the imposition of sanctions. 16 17 18 IT IS SO ORDERED. Dated: May 2, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 9

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