Underwood v. Cox et al

Filing 36

SCHEDULING ORDER and ORDER Directing Clerk to Send Plaintiff a Copy of Local Rule 281 (b), signed by Magistrate Judge Erica P. Grosjean on 9/13/17. Exhaustion Motion Deadline: January 26, 2018; Telephonic Discovery and Status Conference: Februar y 12, 2018, Time: 1:30 p.m. Courtroom 10 (EPG); Non-expert Discovery Cut-off: March 30, 2018; Expert Disclosure Deadline: April 27, 2018; Rebuttal Expert Disclosure Deadline: May 25, 2018; Expert Discovery Cut-off: June 22, 2018; Dispositive Motion Filing Deadline: July 20, 2018; Telephonic Trial Confirmation Hearing: May 9, 2019, Time: 10:00 a.m. Courtroom 2 (AWI); Jury Trial: July 9, 2019 Time: 8:30 a.m. Courtroom 2 (AWI). (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 ANDRE UNDERWOOD, 6 Plaintiff, 7 8 v. 10 12 13 14 SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND PLAINTIFF A COPY OF LOCAL RULE 281(b) Exhaustion Motion Deadline: 9 11 Case No. 1:16-cv-00597-AWI-EPG (PC) R. COX and C. STANLEY, Defendants. January 26, 2018 Telephonic Discovery and Status Conference: February 12, 2018 Time: 1:30 p.m. Courtroom 10 (EPG) Non-expert Discovery Cut-off: March 30, 2018 Expert Disclosure Deadline: April 27, 2018 Rebuttal Expert Disclosure Deadline: May 25, 2018 Expert Discovery Cut-off: June 22, 2018 Dispositive Motion Filing Deadline: July 20, 2018 15 16 17 18 19 20 21 22 23 Telephonic Trial Confirmation Hearing: May 9, 2019 Time: 10:00 a.m. Courtroom 2 (AWI) Jury Trial: 24 July 9, 2019 Time: 8:30 a.m. Courtroom 2 (AWI) 25 This Court conducted a scheduling conference on September 11, 2017. Plaintiff Andre 26 Underwood telephonically appeared on his own behalf. Deputy Attorney General Annakarina De 27 La Torre-Fennell and Supervising Deputy Attorney General Michelle Angus telephonically 28 1 1 appeared on behalf of Defendants. Pursuant to Federal Rule of Civil Procedure 16(b), this Court 2 now sets a schedule for this action. 3 I. DISCOVERY PROCEDURES 4 The parties are now granted leave to serve discovery in addition to that provided as part of 5 initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall 6 proceed as follows: 7 1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil 8 Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed 9 with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that 10 discovery requests shall not be filed unless or until there is a proceeding in which the 11 document or proof of service is at issue). A party may serve on any other party no 12 more than 15 interrogatories, 15 requests for production of documents, and 10 requests 13 for admission. On motion, these limits may be increased for good cause. 14 2. Responses to written discovery requests shall be due forty-five (45) days after the 15 request is first served. Boilerplate objections are disfavored and may be summarily 16 overruled by the Court. Responses to document requests shall include all documents 17 within a party’s possession, custody or control. Fed. R. Civ. P. 34(a)(1). Documents 18 are deemed within a party’s possession, custody, or control if the party has actual 19 possession, custody, or control thereof, or the legal right to obtain the property on 20 demand.1 21 3. If any party or third party withholds a document on the basis of privilege, that party or 22 third party shall provide a privilege log to the requesting party identifying the date, 23 author, recipients, general subject matter, and basis of the privilege within thirty (30) 24 days after the date that responses are due. Failure to provide a privilege log within 25 this time shall result in a waiver of the privilege. To the extent the requesting party 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 disputes whether a document is privileged, it can raise that issue to the Court's 2 attention via a motion to compel (see below). If a party or third party withholds a 3 document on the basis of the official information privilege, the requesting party may 4 request that the Court conduct an in camera review of such document so that the Court 5 can balance the moving party's need for the documents in the litigation against the 6 reasons that are asserted in defending their confidentiality. In any such request for in 7 camera review, the party requesting review shall identify, with specificity, the 8 document(s) for which review is sought. 9 4. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose 10 Plaintiff and any other witness confined in a prison on the condition that, at least 11 fourteen (14) days before such a deposition, Defendant(s) serve all parties with the 12 notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 13 participate in a properly noticed deposition could result in sanctions against Plaintiff, 14 including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule 15 of Civil Procedure 30(b)(4), the parties may take any deposition under this section by 16 video conference without a further motion or order of the Court. Due to security 17 concerns and institutional considerations not applicable to Defendant(s), Plaintiff must 18 seek leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of 19 Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion 20 for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary. 21 5. With the Court’s permission, Plaintiff may serve third party subpoenas, including on 22 the California Department of Corrections and Rehabilitation and/or the Office of the 23 Inspector General, if Plaintiff seeks documents from entities that are not presently 24 defendants in this case. To issue a subpoena on these entities, or any other third 25 parties, Plaintiff must file a request for the issuance of a subpoena duces tecum with 26 the Court. If the Court approves the request, it may issue Plaintiff a subpoena duces 27 tecum, commanding the production of documents from a non-party, and may 28 command service of the subpoena by the United States Marshal Service. Fed. R. Civ. 3 1 P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request 2 only if the documents sought from the non-party are not equally available to Plaintiff 3 and are not obtainable from Defendant(s) through a request for production of 4 documents. Fed. R. Civ. P. 34. In any request for a subpoena, Plaintiff must: (1) 5 identify with specificity the documents sought and from whom; and (2) make a 6 showing in the request that the records are only obtainable through that third party. 7 The documents requested must also fall within the scope of discovery allowed in this 8 action. See Fed. R. Civ. P. 26(b)(1). 9 6. 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 7. A discovery and status conference has been set for February 12, 2018, at 1:30 p.m. 14 Parties have leave to appear by phone. To join the conference, each party is directed 15 to call the toll-free number (888) 251−2909 and use Access Code 1024453. Up until 16 four weeks before the conference, the parties may file motions to compel further 17 discovery responses. No later than two weeks before the conference, the responding 18 party may file response(s) to motion(s) to compel. The motion should include a copy 19 of the request(s) and any response to the request(s) at issue. Unless there is a need for 20 discovery prior to the conference, motions to compel will not be considered until the 21 conference. Motions to compel will not be permitted after the conference absent good 22 cause. 23 conference. 24 The parties should be prepared to address all discovery disputes at the 8. Plaintiff shall make arrangements with staff at his institution of confinement for his 25 attendance at the discovery and status conference. 26 confinement shall make Plaintiff available for the conference at the date and time 27 indicated above. To the extent possible, prior to the conference defense counsel shall 28 confirm with Plaintiff’s institution of confinement that arrangements have been made 4 Plaintiff’s institution of for Plaintiff’s attendance. 1 2 II. PAGE LIMITS AND COURTESY COPIES 3 The parties are advised that unless prior leave of the Court is obtained before the filing 4 deadline,2 all moving and opposition briefs or legal memoranda filed in civil cases before 5 Magistrate Judge Erica P. Grosjean shall not exceed twenty-five (25) pages. Reply briefs by the 6 moving party shall not exceed ten (10) pages. These page limits do not include exhibits. 7 Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in 8 length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies 9 shall reflect the CM/ECF document numbers and pagination. 10 III. NON-EXPERT DISCOVERY DEADLINE 11 The deadline for the completion of all non-expert discovery is March 30, 2018. All non- 12 expert discovery must be provided by this date, including discovery compelled following the 13 discovery and status conference. 14 IV. 15 EXPERT DISCOVERY DEADLINES The deadline for all parties to serve their expert disclosures is April 27, 2018. Parties 16 have until May 25, 2018, to serve their rebuttal expert disclosures. 17 completion of all expert discovery is June 22, 2018. 18 V. The deadline for the EXHAUSTION MOTIONS 19 The deadline for Defendant(s) to present any challenge for failure to exhaust 20 administrative remedies is January 26, 2018. The exhaustion issue may be raised by filing a 21 motion for summary judgment under Fed. R. Civ. P. 56 or by filing a request an evidentiary 22 hearing. Failure to raise the exhaustion issue by this deadline will result in waiver of the defense. 23 See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (providing that the exhaustion question 24 should be decided as early as feasible). 25 VI. 26 27 28 DISPOSITIVE MOTIONS DEADLINE The deadline for filing dispositive motions (except for dispositive motions based on failure to exhaust administrative remedies) is July 20, 2018. 2 Parties may seek leave by filing a short motion. 5 1 2 VII. MAGISTRATE JUDGE JURISDICTION The parties have declined the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 3 636(c). (ECF No. 23). 4 VIII. TELEPHONIC TRIAL CONFIRMATION HEARING 5 A Telephonic Trial Confirmation Hearing is set for May 9, 2019, at 10:00 a.m., in 6 Courtroom 2, before District Judge Anthony W. Ishii. Counsel for Defendant(s) is required to 7 arrange for the participation of Plaintiff in the Telephonic Trial Confirmation Hearing and to 8 initiate the telephonic hearing at (559) 499-5660. 9 In addition to the matters already required to be addressed in the pretrial statement in 10 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 11 order to obtain the attendance of witnesses. The procedures and requirements for making such a 12 showing are outlined in detail below. 13 procedures set forth below may result in the preclusion of any or all witnesses named in his 14 pretrial statement. Plaintiff is advised that failure to comply with the 15 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 16 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 17 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 18 produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or 19 witness testimony. 20 procedures to ensure that the witnesses will be at the trial and available to testify. 21 1. If Plaintiff wants to call witnesses to testify, he must follow certain Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 22 Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give 23 testimony cannot come to court unless this Court orders the warden or other custodian to permit 24 the witness to be transported to court. This Court will not issue such an order unless it is satisfied 25 that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual 26 knowledge of relevant facts. 27 A party intending to introduce the testimony of incarcerated witnesses who have agreed to 28 voluntarily attend the trial must serve and file a written motion for a court order requiring that 6 1 such witnesses be brought to court at the time of trial. The motion must: (1) state the name, 2 address, and prison identification number of each such witness; and (2) be accompanied by 3 declarations showing that each witness is willing to testify and that each witness has actual 4 knowledge of relevant facts. 5 Incarcerated Witnesses.” The motion should be entitled “Motion for Attendance of 6 The willingness of the prospective witness can be shown in one of two ways: (1) the party 7 himself can swear by declaration under penalty of perjury that the prospective witness has 8 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 9 which declaration the party must state when and where the prospective witness informed the party 10 of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 11 perjury by the prospective witness, in which the witness states that he or she is willing to testify 12 without being subpoenaed. 13 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 14 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 15 eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell 16 and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may 17 swear to the cellmate’s ability to testify), the party himself can swear by declaration under penalty 18 of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a 19 declaration signed under penalty of perjury by the prospective witness in which the witness 20 describes the relevant facts to which the prospective witness was an eye- or ear witness. Whether 21 the declaration is made by the party or by the prospective witness, it must be specific about the 22 incident, when and where it occurred, who was present, and how the prospective witness 23 happened to be in a position to see or to hear what occurred at the time it occurred. 24 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 25 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who 26 refuse to testify voluntarily, the party should serve and file a written motion for a court order 27 requiring that such witnesses be brought to court at the time of trial. Such motion should be in 28 the form described above. In addition, the party must indicate in the motion that the incarcerated 7 1 witnesses are not willing to testify voluntarily. 2 The Court will review and rule on the motion(s) for attendance of incarcerated witnesses, 3 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 4 issue the order necessary to cause the witness’s custodian to bring the witness to court. 5 6 7 Motion(s) for the attendance of incarcerated witnesses, if any, must be filed on or before March 8, 2019. Oppositions, if any, must be filed on or before April 8, 2019. 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 8 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 9 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need 10 11 be sought or obtained from the Court. 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 12 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 13 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the 14 party seeking the witness’s presence must tender an appropriate sum of money for the witness. 15 Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness 16 fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 17 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 18 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 19 location of each unincarcerated witness. The Court will calculate the travel expense for each 20 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, 21 submit a money order made payable to the witness for the full amount of the witness’s travel 22 expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 23 unincarcerated witness by the United States Marshal unless the money order is tendered to the 24 Court. Because no statute authorizes the use of public funds for these expenses in civil cases, the 25 tendering of witness fees and travel expenses is required even if Plaintiff was granted leave to 26 proceed in forma pauperis. 27 If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse to 28 testify voluntarily, Plaintiff must submit the money orders to the Court no later than April 8, 8 1 2019. In order to ensure timely submission of the money orders, Plaintiff must notify the Court 2 of the names and locations of his witnesses, in compliance with step 4 above, no later than March 3 8, 2019. 4 Plaintiff shall file and serve a pretrial statement as described in this order on or before 5 March 8, 2019. Defendant(s) shall file and serve a pretrial statement as described in this order on 6 or before April 8, 2019. 7 The parties are advised that failure to file pretrial statements as required by this order may 8 result in the imposition of appropriate sanctions, which may include dismissal of the action or 9 entry of default. 10 11 The Clerk of Court is DIRECTED to send Plaintiff a copy of Local Rule 281(b). IX. 12 TRIAL DATE A trial is set for July 9, 2019, at 8:30 a.m., in Courtroom 2, before 13 District Judge Anthony W. Ishii. 14 X. EFFECT OF THIS ORDER 15 This order represents the Court and the parties’ best estimated schedule to complete this 16 case. Any party unable to comply with the dates outlined in this order shall immediately file an 17 appropriate motion or stipulation identifying the requested modification(s). 18 The dates set in this order are considered to be firm and will not be modified absent a 19 showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the 20 civil case docket, this Court disfavors requests to modify established dates. 21 Failure to comply with this order may result in the imposition of sanctions. 22 23 24 IT IS SO ORDERED. Dated: September 13, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 9

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