Richard Bernier, III et al v. Walker et al

Filing 91

STIPULATION and ORDER TO COUNTINUE INITIAL SCHEDULING CONFERENCE. Order signed by Magistrate Judge Sheila K. Oberto on 9/16/2022. The Initial Scheduling Conference currently set for 10/4/2022 is CONTINUED to 4/27/2023 at 09:30 AM in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. (Kusamura, W)

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1 2 3 4 5 6 7 8 James D. Weakley, Esq. Bar No. 082853 Brande L. Gustafson, Esq. Bar No. 267130 WEAKLEY & ARENDT A Professional Corporation 5200 N. Palm Ave., Suite 211 Fresno, California 93704 Telephone: (559) 221-5256 Facsimile: (559) 221-5262 jim@walaw-fresno.com brande@walaw-fresno.com Attorneys for Defendants, County of Fresno, Garrett Majors, John Robinson, and Nathaniel Wilkinson UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 RICHARD CHARLES BERNIER, III; NADEZHDA USTINENKOV, ) ) ) Plaintiffs, ) ) vs. ) ) FRESNO POLICE OFFICER ANTHONY RODRIGUEZ; FRESNO POLICE OFFICER ) ) KEVIN JONES; FRESNO COUNTY SHERIFF’S DEPUTY GARRETT MAJORS; ) ) FRESNO COUNTY SHERIFF’S DEPUTY ) JOHN ROBINSON; FRESNO COUNTY ) SHERIFF’S DEPUTY NATHANIEL ) WILKINSON; UNKNOWN FRESNO ) COUNTY SHERIFF’S DEPARTMENT DEPUTIES; UNKNOWN FRESNO POLICE ) ) OFFICERS; THE CITY OF FRESNO, CALIFORNIA; THE COUNTY OF FRESNO, ) ) CALIFORNIA, ) ) Defendants. CASE NO. 1:18-cv-01131-JLT-SKO STIPULATION TO COUNTINUE INITIAL SCHEDULING CONFERENCE; ORDER Date: October 4, 2022 Time: 9:45 a.m. Ctrm: 7 (6th Floor) The Honorable Sheila K. Oberto (Doc. 90) Complaint Filed: August 20, 2018 Trial Date: TBD 24 IT IS HEREBY STIPULATED AND AGREED by and between the attorneys of records 25 for plaintiffs Richard Charles Bernier, III (“Bernier”) and Nadezhda Ustinenkov (“Ustinenkov”) 26 (collectively “Plaintiffs”) and defendants1 County of Fresno (“County”), Fresno County 27 On May 14, 2019, Plaintiffs and Defendants California Highway Patrol Officers Michael Walker, Pablo Lopez, Corde Spencer, and William Avila filed a Stipulation dismissing those defendants with prejudice. (Doc. No. 36). The Court terminated Defendants California 28 1 Stipulation to Continue Initial Scheduling Conference; Order 1 1 Sheriff’s Deputies Garrett Majors (“Deputy Majors”), John Robinson (“Deputy Robinson”), and 2 Nathaniel Wilkinson (“Deputy Wilkinson”) (collectively “County Defendants”); and City of 3 Fresno (“City”), Fresno Police Officers Anthony Rodriguez (“Officer Rodriguez”) and Kevin 4 Jones (“Officer Jones”) (collectively “City Defendants”) as follows: 5 Bernier was arraigned on November 27, 2018 in Fresno County Superior County (The 6 People of the State of California vs. Richard Charles Bernier, Fresno County Superior Court 7 Case Number F1890078) on criminal charges, which arose from his arrest as alleged in the 8 Fourth Amended Complaint and make up the basis for this action. Bernier has had pre- 9 preliminary hearings scheduled and re-scheduled since that time for various reasons, with the 10 latest pre-preliminary hearing held on August 16, 2022, setting the preliminary hearing for 11 October 25, 2022. Still no trial date has been set in the case yet. 12 On March 14, 2019, the Court ordered the case stayed as to federal and state law claims 13 premised upon excessive force or retaliatory prosecution, with the exception that Plaintiffs may 14 amend those claims to add new defendants. See Doc. No. 30. The Court also ordered that the 15 case may proceed as to the other allegations of retaliation (failure to provide medical care and/or 16 inappropriate jail housing.) Id. This ruling was modified on April 15, 2019 after a motion for 17 reconsideration as follows: 18 19 20 21 22 23 24 25 26 Plaintiffs are entitled to discover information sufficient to permit them to amend their complaint to name as defendants FPD officers at the scene of Plaintiffs’ arrest. At a bare minimum, Plaintiffs are entitled to conduct civil discovery to determine the identity of any and all FPD officers who were present during the incident. Beyond that, Defendants have an election to make. They may decline to reveal information beyond that related to the presence of FPD officers at the scene. If they do so, the Court will construe that election as a waiver of any motion to dismiss claims brought by Plaintiffs against those officers on the ground of failure to state a claim. Alternatively, Defendants shall respond to narrowly tailored discovery designed to reveal the role(s) any FPD officers played at the scene of the arrest. See Doc. No. 35, p. 4:10-18. Plaintiffs filed a Second Amended Complaint on November 6, 2019. Doc. No. 42. 27 28 Highway Patrol Officers Michael Walker, Pablo Lopez, Corde Spencer, and William Avila on May 15, 2019. (Doc. No. 37). Stipulation to Continue Initial Scheduling Conference; Order 2 1 County filed a motion to strike the SAC or in the alternative motion to dismiss and motion to 2 strike portions of the SAC on November 20, 2019. Doc. No. 45. The remaining defendants 3 filed answers. Doc. Nos. 58-59. The court granted in part and denied in part County’s motion 4 to strike and dismiss, granting Plaintiffs leave to amend as to Plaintiffs’ Monell claim. Doc. No. 5 63. 6 Plaintiffs filed a Third Amended Complaint (“TAC”) on August 1, 2020 (Doc. No. 64) 7 and a Notice of Errata Re: Third Amended Complaint for Damages and Injunctive Relief on 8 August 12, 2020 (Doc. No. 65). On August 14, 2020, City Defendants filed a motion to dismiss 9 and motion for more definite statement (Doc. No. 66) and County Defendants filed a motion to 10 dismiss (Doc. No. 67). Both of the motions were granted with leave to amend on January 24, 11 2022. 12 Plaintiffs filed a Fourth Amended Complaint on February 24, 2022. Doc. No. 80. On 13 March 10, 2022, City Defendants filed a motion to dismiss portions of the Fourth Amended 14 Complaint (Doc. No. 81) and County Defendants filed a motion to dismiss and motion to strike 15 portions of the Fourth Amended Complaint (Doc. Nos. 82). Both motions have been fully 16 briefed and are still awaiting a ruling. 17 Considering the partial stay in place during the pendency of Bernier’s parallel criminal 18 case, which does not have a trial date yet, and the still pending motions to dismiss and motion 19 strike portions of the Fourth Amended Complaint, the parties would like to have the status of 20 the pleadings settled in advance of the Initial Scheduling Conference so that all defendants have 21 an opportunity to file an Answer and so the parties can better evaluate potential discovery issues 22 and better determine a proper discovery and trial schedule. 23 24 25 Accordingly, the parties believe that there is good cause for the Court to approve the following stipulations: 1. The October 4, 2022 Initial Scheduling Conference be vacated, and a Status 26 Conference be scheduled on April 18, 2023, or as soon thereafter as the Court and parties are 27 available, to evaluate the appropriateness of setting a Scheduling Conference depending on the 28 status of the underlying criminal case. Stipulation to Continue Initial Scheduling Conference; Order 3 1 2. A Joint Status Conference Statement will be electronically filed by the parties 7 2 days prior to the Status Conference date, and will be emailed in Word format to 3 skoorders@caed.uscourts.gov. 4 Dated: September 15, 2022 WEAKLEY & ARENDT A Professional Corporation 5 6 By: 7 9 Dated: September 15, 2022 11 By: 12 13 14 15 __ James D. Weakley Brande L. Gustafson Attorneys for Defendants County of Fresno, Garrett Majors, John Robinson, and Nathaniel Wilkinson 8 10 /s/ Brande L. Gustafson Dated: September 15, 2022 16 By: 17 18 19 WHITNEY, THOMPSON & JEFFCOACH LLP /s/ Mandy L. Jeffcoach (As authorized on 9/15/22) Mandy L. Jeffcoach Jessica L. Thomason Attorneys for Defendants Fresno Police Officer Anthony Rodriguez, Fresno Police Officer Kevin Jones, and The City of Fresno, erroneously sued as The City of Fresno, California LAW OFFICE OF KEVIN G. LITTLE /s/ Kevin G. Little (As authorized on 9/15/22) Kevin G. Little Attorneys for Plaintiffs Richard Charles Bernier, III and Nadezhda Ustinenkov ORDER 20 Pursuant to the parties’ above stipulation (Doc. 90), the Scheduling Conference 21 currently set for October 4, 2022, is CONTINUED to April 27, 2023, at 9:30 a.m. before 22 Magistrate Judge Sheila K. Oberto. The parties SHALL file a Joint Status Conference 23 Statement by no later than April 20, 2023. 24 25 26 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto September 16, 2022 . UNITED STATES MAGISTRATE JUDGE 27 28 Stipulation to Continue Initial Scheduling Conference; Order 4

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