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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?