Lee v. Carey et al

Filing 87

TRIAL CONFIRMATION ORDER signed by District Judge Kimberly J. Mueller on 5/20/2011 ORDERING 85 the Pretrial Order is ADOPTED, except that trial briefs will be due 14 days prior to trial instead of 10; the jury trial will commence on Monday, 8/8/201 1 at 9:00 AM; the relevant time period during which plaintiff's must prove that defendant violated his rights arising under the ADA will continue to be 11/10/2005 to 12/13/2005; pltf shall file and serve his motion for appointment of counsel no later than a week after this order; and the Clerk of Court is directed to STRIKE 85 the previous order of this court. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE LEE,
Plaintiff,

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No. CIV-S-06-0813 KJM-EFB (TEMP) P

vs.

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THOMAS CAREY, et al.,

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Defendants.

TRIAL CONFIRMATION ORDER
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I.

PRETRIAL ORDER AND TRIAL
Deputy Attorney General Phillip Arthur appeared for defendant Stufflebeam

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(“defendant”) and plaintiff George Lee (“plaintiff”) appeared for himself at the trial confirmation

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hearing (“TCH”), which took place on May 11, 2011. After reviewing the Pretrial Order, filed

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March 15, 2011, plaintiff’s motion in limine, filed April 11, 2011, and considering the matters

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raised at the TCH, the court AFFIRMS the Pretrial Order, except as expressly amended in this

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Order, and further ORDERS the following:

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As a housekeeping matter, the court notes that the Pretrial Order on page 2, line 13

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misstates the date by which opening trial briefs are due in accordance with Local Rule 285.

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Local Rule 285 requires that trial briefs are due no later than fourteen days prior to trial.

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Accordingly, the parties shall file and serve trial briefs including “a short statement of facts, all
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admissions and stipulations not recited in the pretrial order, and a summary of points of law,

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including reasonably anticipated disputes concerning admissibility of evidence, legal arguments,

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and citations of authority in support thereof” no later than fourteen (14) days prior to the date of

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trial. E.D. Cal. LOCAL R. 285.

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The jury trial will commence before the undersigned on Monday, August 8, 2011 at 9:00

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a.m. in Courtroom 3 on the 15th Floor.

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II.

CAUSE OF ACTION

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Plaintiff is a California prisoner proceeding pro se in an action for violation of his civil

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rights arising under 42 U.S.C. § 1983 based on an alleged violation by defendant of Title II of

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the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. (“ADA”). The sole remaining

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claim is for compensatory damages. Plaintiff alleges that defendant violated his rights under the

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ADA sometime between November 10, 2005 and December 13, 2005, when defendant denied

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plaintiff access to an elevator to access the law library at California State Prison-Solano

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(“CSPS”) because of his disability.

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At the TCH, plaintiff objected to the court allowing C. Smith, Custodian of Inmate

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Records, to testify regarding defendant’s admittance to the library on or around December 13,

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2005 as the relevant outside date for determining whether defendant violated plaintiff’s rights

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under the ADA. Plaintiff argued that the appropriate end date for determining a violation should

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be when he was transferred from CSPS on July 1, 2006, because he was never allowed to use the

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elevator to access the library. In the Second Amended Complaint, filed June 14, 2007, and the

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Amended Complaint, filed September 25, 2008, plaintiff indicates that defendant’s allegedly

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actionable conduct occurred on or about December 13, 2005. See ECF No. 17 at 4; ECF No. 38

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at 5. Furthermore, the November 10, 2005 to December 13, 2005 time line was set forth in the

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Findings and Recommendations by the Magistrate Judge on September 9, 2009, and plaintiff did

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not object. ECF No. 53. The Magistrate Judge’s Findings and Recommendations were adopted

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on November 12, 2009. ECF No. 56. Finally, under the Pretrial Order, the claim is limited to
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defendant’s action, which allegedly occurred in “late 2005.” ECF No. 79 at 2. Once again,

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defendant did not object. Plaintiff has had ample time to revise his allegations and to object to

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the orders of this court setting forth the time frame for the disputed claim. Accordingly,

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plaintiff’s objection is DENIED.

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III. WITNESSES AND EVIDENCE

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On April 6, 2011, plaintiff submitted a motion in limine to exclude the Abstract of

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Judgment dated September 24, 1999, the Presentence Probation Report dated September 17,

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1999, and the testimony of witness C. Smith, Custodian of Inmate Records, all based on Federal

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Rule of Evidence 404(b). ECF No. 82. At the TCH, the court granted the motion to the extent

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that the specific felony conviction and disciplinary record of plaintiff will not be admitted at

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trial, unless defendant demonstrates the conviction involved dishonesty or the making of a false

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statement.

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IV. COUNSEL

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Plaintiff moved to be appointed counsel because he has been diagnosed with narcolepsy

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and he believes an attorney will be necessary to adequately present his case. The court granted

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plaintiff leave to submit a formal motion with supporting documentation within seven (7) days of

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this order.

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V. CONCLUSION

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In sum, the court hereby ORDERS:

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(1) The Pretrial Order is adopted, except that trial briefs will be due fourteen (14) days

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prior to trial instead of ten (10);

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(2) The jury trial will commence on Monday, August 8, 2011 at 9:00 a.m.;

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(3) The relevant time period during which plaintiff’s must prove that defendant violated

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his rights arising under the ADA will continue to be November 10, 2005 to December 13, 2005;

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/////

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(4) The specific felony conviction and disciplinary record of plaintiff will not be admitted

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at trial; however, the felony conviction may be admissible if it involved dishonesty or the

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making of a false statement;

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(5) Plaintiff shall file and serve his motion for appointment of counsel no later than a
week after this order; and
(6) The Clerk of Court is directed to STRIKE the previous order of this court filed on

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May 19, 2011 at docket number 85.

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DATED: May 20, 2011.

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UNITED STATES DISTRICT JUDGE

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