Manago v. Williams, et al

Filing 313

ORDER signed by Magistrate Judge Kendall J. Newman on 4/17/2015 ORDERING plaintiff to file a response to this order within 30 days; plaintiff's response may be no more than 15 pages in length; plaintiff may, in his response, notify the court if he wishes to be appointed counsel for the purpose of trial; counsel for defendants Kelly, Jaffe, Martin, Chapman, Vance, and Kennedy have 30 days to ascertain, to the best of counsel's ability, whether inmate B. Hackett is deceased; if counsel determines that Mr. Hackett is deceased, counsel shall file and serve a formal notice; otherwise counsel shall file and serve notice of Mr. Hackett's last known whereabouts. (See Order for Details)(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

STEWART MANAGO,

12
13
14
15

No. 2:07-cv-02290 TLN KJN P

Plaintiff,
v.

ORDER

BRAD WILLIAMS, et al.,
Defendants.

16
17

Plaintiff is a state prisoner, currently incarcerated at California State Prison-Corcoran.

18

Plaintiff proceeds, in forma pauperis and without counsel, in this civil rights action pursuant to 42

19

U.S.C. § 1983. Following this court’s ruling on defendants’ motion for summary judgment (ECF

20

No. 277), plaintiff now proceeds with Eighth Amendment claims against defendant Mary

21

Brockett ,a former correctional officer at California State Prison-Sacramento (“CSP-SAC”), for

22

cruel and unusual punishment; against defendants M. Jaffee, K. Kelly, and J. Martin, all mental

23

health professionals at CSP-SAC, under theories of deliberate indifference to plaintiff’s serious

24

mental health needs and failure to protect plaintiff; against defendants M. Jaffee and K. Kelly

25

based on a theory of supervisory liability; against defendant Chapman, an Internal Affairs agent

26

with the California Department of Corrections and Rehabilitation, based on a theory of failure to

27

protect plaintiff; and against defendants P. Kennedy and S. Vance, correctional staff at CSP-SAC,

28

based on a theory of failure to protect plaintiff.
1

1
2

I. Plaintiff’s Witnesses
The parties previously submitted preliminary pretrial statements in response to court

3

order. (See ECF Nos. 307-309.) According to his pretrial statement, plaintiff anticipated calling

4

at least 216 material witnesses, and estimated trial lasting up to six months. (See ECF No. 307 at

5

3.) These projections were unrealistic, given that “[j]udges in the Eastern District of California

6

carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and

7

resources to individual cases and matters.” Cortez v. City of Porterville, 5 F. Supp. 3d 1160,

8

1162 (E.D. Cal. 2014). Accordingly, the court ordered plaintiff to file a statement entitled “Initial

9

List of Plaintiff’s Prospective Trial Witnesses,” and required that plaintiff set forth, for each

10
11
12
13
14
15
16
17
18
19
20
21
22
23

witness, the following information:
1. Name of prospective witness, and brief identifying information
(e.g., CDCR job title or inmate identification number), including
present location of witness;
2. Whether each prospective witness has agreed to testify
voluntarily;
3. A brief summary of the anticipated testimony of each
prospective witness, including a description of the relevant facts to
which each witness was an eye-witness or ear-witness, and all
necessary clarifying information, i.e., a description of the pertinent
incident, when and where it occurred, who else was present, and
how and why the prospective witness was present when the incident
occurred; and
4. A statement why the anticipated testimony of each prospective
witness is not redundant of the anticipated testimony of other
witnesses.
For each prospective witness, this information shall be provided in
a single paragraph that is no more than one-half page in length;
hence, each page shall identify at least two witnesses and all
required information.
Finally, plaintiff shall identify those
prospective witnesses whom he deems essential to proving his
allegations in this action.

24

(Order, ECF No. 310 at 1-2.) In an accompanying footnote, the court observed: “Plaintiff is

25

informed that, absent specific and persuasive reasons, the court will be disinclined to approve

26

more than ten essential witnesses. Plaintiff is also informed that the purpose of trial in this case is

27

to assess the truth of plaintiff’s factual allegations in support of his legal claims in this case only,

28

and not to prove any other alleged wrongdoing by defendants or the California Department of
2

1

Corrections and Rehabilitation.” (Id. n.1) (emphasis in original).

2

In his responsive statement, plaintiff largely failed to comply with these requirements.

3

Despite reducing his witness list to 74 defendants, plaintiff failed (i) to indicate whether each

4

witness has agreed to testify voluntarily, (ii) in many instances, to adequately detail each

5

witness’s anticipated testimony,1 and (iii) to specify why each prospective witness’s testimony is

6

not redundant.2 Finally, and perhaps most importantly, plaintiff failed to identify his essential

7

witnesses. Instead, plaintiff repeatedly and at length “argues that the district court will commit

8

a[n] error by denying all his relevant and material witnesses to be present at trial,” (ECF No. 311

9

at 5), going so far as to file an accompanying 33-page-long declaration largely devoted to airing

10

his grievances with the procedures set forth in the court’s prior order.
Plaintiff’s protests are unavailing. It is well-settled that “[d]istrict courts have inherent

11
12

power to control their dockets . . . .” Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992).

13

Federal Rule of Civil Procedure 16 permits the court, as part of any pretrial conference, to

14

“consider and take appropriate action on the following matters: . . . (D) avoiding unnecessary

15

proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence

16

702; . . . [and] (G) identifying witnesses . . . .” Fed. R. Civ. P. 16(c)(2). The Ninth Circuit has

17

long recognized district courts’ ability to limit the number of witnesses permitted to testify at

18
19
20
21
22
23
24
25
26
27

1

For example, plaintiff lists inmates Wilson, Redmond, Johnson, and Dukes as “all [being]
material witness relating to defendant Brockett’s serious misconduct at CSP-Sacramento.
(Documents Files, Dated August 15, 2003).” (ECF No. 311 at 17.) This single sentence hardly
meets the court’s requirement that plaintiff provide “[a] brief summary of the anticipated
testimony of each prospective witness, including a description of the relevant facts to which each
witness was an eye-witness or ear-witness, and all necessary clarifying information, i.e., a
description of the pertinent incident, when and where it occurred, who else was present, and how
and why the prospective witness was present when the incident occurred.” (ECF No. 310 at 2.)
2

For example, plaintiff lists ten witnesses whom, at various times between 2000 and 2008,
documented that plaintiff suffers from post-traumatic stress disorder. (ECF No. 311 at 24-26.)
Plaintiff fails to explain why these individuals’ testimony would not be redundant on the point of
plaintiff’s alleged diagnosis, instead broadly arguing that their testimony “will show that
defendants Jaffe, Kelly and Martin had committed perjury,” and that refusing to allow these
witnesses to testify “would violate plaintiff’s right to have a fair trial.” (Id. at 26.) In other
words, plaintiff has completely ignored the issue of redundancy.

28
3

1

trial. See Ruud v. U.S., 256 F.2d 460, 462 n. 5 (9th Cir. 1958), cert. denied, 358 U.S. 817 (1958)

2

(citing Fed. R. Civ. P. 16) (cited for this proposition in Charles Alan Wright & Arthur R. Miller,

3

6A Fed. Practice & Procedure § 1525 (3rd ed. 2014)).

4

The hours that plaintiff devoted to writing the declaration would have been better spent

5

complying with the requirements reproduced above. If plaintiff had done so, this case could have

6

proceeded to trial expeditiously, within the reasonable constraints established by the court.

7

Instead, plaintiff’s failure to comply has forced the court to spend an undue amount of time

8

assessing the merits of plaintiff’s witnesses on the basis of incomplete information. It is ironic

9

that plaintiff recently filed a document entitled “Motion to Ask the Court for Permission to Move

10

the Case Forward,” in which he argues that “he would be prejudiced were a continue [sic] delay

11

with the litigation” (ECF No. 312 at 1), when it is plaintiff’s own conduct that has delayed this

12

matter. Plaintiff is hereby notified that any future failure to precisely comply with court orders,

13

and any filing of excess documents beyond those ordered by the court, will only further delay trial

14

herein and may result in the imposition of sanctions.

15

The court will now turn to the matter of identifying the witnesses that plaintiff will be

16

permitted to call at trial. Based on plaintiff’s representations in his statement, it appears that the

17

following witnesses are essential to plaintiff’s case:

18

1. Defendant Mary Brockett, former Correctional Officer, CSP-Sacramento

19

2. Defendant Jill Chapman, CDCR Special Agent

20

3. Defendant S. Vance, Facility Captain, CSP-Sacramento

21

4. Erin Parker, CDCR Special Agent

22

5. C. Gold, Correctional Sergeant, CSP-Sacramento

23

6. D. Cain, CDCR Special Agent

24

7. Dr. A. Gaerlan, PhD, CSP-Sacramento

25

8. M. Knowles, Former Warden, CSP-Sacramento

26

9. R. Campbell, Associate Warden, CSP-Sacramento

27

10. S. Stiles, former Chief Deputy Warden, CSP-Sacramento

28

11. Love, Officer, CSP-Sacramento
4

1

12. Thomas Detlefson, Correctional Officer, CSP-Sacramento

2

13. Thomas Brown, Lieutenant, CSP-Sacramento

3

14. Keith Wattley, Attorney, Prison Law Office

4

Plaintiff is cautioned that the inclusion of individuals in the list above does not guarantee that

5

they will be present at trial. Plaintiff must follow the procedures that will be set forth in a

6

forthcoming pretrial order to secure a witness’s attendance at trial.3

7
8

Plaintiff lists the following individuals as, in some form or fashion, having diagnosed him
as suffering from post-traumatic stress disorder:

9

1. Dr. Grimes, PhD

10

2. Dr. A. Gaerlan, PhD4

11

3. Dr. G. Gauch, PhD

12

4. Dr. D. Wheeler, PhD

13

5. Dr. T. Ewing, PhD

14

6. Dr. W. Baxter, PhD

15

7. Dr. White, MD

16

8. Dr. C. Bakewell

17

9. Dr. L. Hamilton

18

10. K. Henriques, LCSW

19

(ECF No. 311 at 24-6.) Plaintiff then lists the following individuals as, in some form or fashion,

20

as having diagnosed him as suffering from schizophrenia:5

21

3

22
23
24
25
26
27
28

The required procedures must be followed even if plaintiff wishes to secure a witness’s
testimony via live videoconference, as he implies he would like to do. (See ECF No. 311 at 4-5.)
4

The court has already included Dr. Gaerlan in the list of essential witnesses above based on
plaintiff’s description of Dr. Gaerlan as “his CSP-Sac Clinical Case Manager” and Dr. Gaerlan’s
“aware[ness] of plaintiff’s OIA involvement during the sting operation.” (ECF No. 311 at 24.)
Plaintiff should carefully consider whether Dr. Gaerlan’s testimony will also suffice to establish
the fact of the PTSD diagnosis, or whether plaintiff requires one additional witness to testify on
this point.
5

Plaintiff also previously identified Dr. Windham, his primary care physician at CSP-Sac, as
having diagnosed him with paranoid schizophrenia. (See Amended Findings and
Recommendations, ECF No. 259 at 9.) However, his justification for including Dr. Windham as
5

1

1. Dr. S. Sheppard, MD

2

2. Dr. F. Fried, MD

3

3. Dr. A. Ward, Jr., MD

4

4. Dr. M. Watts, PhD

5

5. Dr. V. Andres, MD

6

(Id. at 26-7.) The court will not permit plaintiff to call all of these witnesses simply to establish

7

the circumstances of plaintiff’s diagnoses. Federal Rule of Evidence 402 permits the court “to

8

exclude relevant evidence if its probative value is substantially outweighed by a danger of one or

9

more of the following: . . . wasting time, or needlessly presenting cumulative evidence.” Plaintiff

10

must carefully consider the reasons why he seeks to introduce the evidence of his diagnoses and

11

which one or two witnesses will best allow him to satisfy these reasons. Absent a compelling,

12

fact-specific justification, it is extremely unlikely that the court will allow plaintiff, in his pre-trial

13

statement, to designate more than one witness for each diagnosis.

14

In setting forth the list of essential witnesses above, the court has not considered the

15

subject of which witnesses will be required in order to authenticate and/or introduce medical

16

records, audio recordings, and/or other documentary evidence.6 It is hoped that the parties will

17

stipulate to the authenticity and/or admissibility of the pertinent records so that trial may proceed

18

more efficiently.

19
20

Plaintiff identifies several witnesses who allegedly have material information regarding
defendant Brockett’s alleged sexual misconduct. These are:

21
22
23
24
25
26
27

a witness is that she “pleaded guilty to having sexual intercourse with inmate Collins” (ECF
No. 311 at 32), a fact that is irrelevant to plaintiff’s surviving claims.
6

For example, based on plaintiff’s statement, it may be that D. Leiber (former Correctional
Lieutenant, CSP-Sacramento) and Michael Fejarah (California Department of Justice) are needed
as witnesses in order to authenticate various audio recordings. (See ECF No. 311 at 20, 40.)
Similarly, Cheryl Pliler (identified as “Former Chief Deputy Director at Sacramento”) may have
to testify in order to authenticate “a memorandum . . . concerning a plan to record the
conversation between plaintiff and defendant Brockett.” (Id. at 20.) These individuals are
nevertheless omitted from the essential witness list because it may be that defendants will
stipulate to the authenticity and/or admissibility of this evidence.

28
6

1

1. M. Manski, Correctional Officer, CSP-Sacramento

2

2. Inmate Wilson, CSP-Sacramento

3

3. Inmate Redmond, CSP-Sacramento

4

4. Inmate Johnson, CSP-Sacramento

5

5. Inmate Dukes, CSP-Sacramento

6

However, as discussed above, plaintiff has failed to identify the nature of these individuals’

7

expected testimony, how they obtained the information in question, and the other details called

8

for in the court’s prior order. Nevertheless, as the testimony in question could be material to

9

plaintiff’s claims against defendant Brockett, plaintiff will be given one final opportunity to

10

justify the inclusion of each of these witnesses in his witness list.

11
12

Finally, the court deems the following individuals, identified and discussed below, to be
unnecessary or redundant witnesses at trial.
Based on plaintiff’s filed statement, it appears that the following individuals’ knowledge

13
14

and/or statements regarding defendant Brockett and her activities are at best of scant relevance to

15

plaintiff’s claim against Brockett, and are outweighed by the risk of unfair prejudice, confusing

16

the issues, misleading the jury, undue delay, wasting time and/or presenting cumulative evidence.

17

Fed. R. Evid. 401-403.

18

1. Sandi Grant, Special Agent-in-Charge, OIA, Sacramento

19

2. Coral Holder, CDCR Special Agent.

20

3. George Stratten, former Chief Deputy Warden, CSP-Sacramento

21

4. Dr. Susan Raybourn, LCSW, CSP-Sacramento.

22

5. Steve Secrest, Deputy District Attorney, Sacramento County

23

6. Donald P. Dorman, Attorney, Sacramento7

24
7

25
26
27
28

According to plaintiff, “On September 16, 2004, Attorney Donald P. Dorfman reported to
plaintiff that, ‘Apparently, what happened between plaintiff and defendant Brockett had gained a
lot of notoriety among the correctional officers, as one pull[ed] me aside one day and told me
about it.’” (ECF No. 311 at 40.) Standing alone, this statement is inadmissible hearsay, unless
(i) Dorfman is willing to identify the correctional officer in question, and (ii) that officer is either
defendant Vance or defendant Kennedy, in which case, the statement may be admissible under
Federal Rule of Evidence 801(d)(2).
7

Based on plaintiff’s statement, it appears that the following witnesses’ testimony has no

1
2

relevance to plaintiff’s remaining claims:8, 9

3

1. E. Caden, Former Warden, Salinas Valley State Prison

4

2. B. Gibbons, Correctional Officer, Salinas Valley State Prison

5

3. C. Donhahoe, Correctional Lieutenant, Salinas Valley State Prison

6

4. C. Blackstone, Lieutenant

7

5. A. Middlebrook, CDCR Special Agent, Sacramento

8

6. P. Edwards, CDCR Special Agent

9

7. Scott Kernan, Former Warden, CSP-Sacramento

10

8. J. Walker, Former Warden, CSP-Sacramento

11

9. S. Cook, Correctional Officer, CSP-Sacramento

12

10. M. Williamson, Correctional Officer, CSP-Sacramento

13

11. S. Shannon, Lieutenant, CSP-Sacramento

14

12. R. Towns, Sergeant, CSP-Sacramento

15

13. Inmate Taylor, CSP-Sacramento

16

14. Inmate A. Scruggs, CSP-Sacramento

17

15. Inmate Jones, CSP-Sacramento

18

16. Inmate Anderson, CSP-Sacramento

19

17. Inmate Brown, CSP-Sacramento

20
8

21
22
23
24
25

Some of these witnesses may have had testimony relevant to claims that are no longer at issue in
this case. For example, plaintiff submitted documents authored by inmates Taylor and Scruggs in
support of his opposition to defendants’ motion for summary judgment. (See Amended Findings
& Recommendations, ECF No. 259 at 73 n. 30.) But these documents related to plaintiff’s claims
of retaliatory misconduct, on which summary judgment was granted to the defendants. Plaintiff
should not attempt to further litigate claims that have been dismissed or on which summary
judgment has been granted to defendants. Any further attempt to do so may be grounds for
sanctions against plaintiff.
9

26
27
28

Plaintiff seeks to admit testimony regarding alleged incidents of sexual contact between staff
and mentally-ill inmates at CSP-Sacramento who are not parties to this lawsuit. The court doubts
that these incidents have even scant relevance to plaintiff’s surviving claims, and any relevance
would be far outweighed by the risk of unfair prejudice, confusing of the issues, and misleading
the jury. Fed. R. Evid. 403.
8

1

18. Inmate Collins, CSP-Sacramento

2

19. Dr. Windham, PhD, formerly at CSP-Sacramento

3

20. G. Marshall, Lieutenant, High Desert State Prison

4

21. S. Peck, Lieutenant, High Desert State Prison

5

Plaintiff has provided insufficient information regarding the following individuals for the court to

6

find that they are essential to plaintiff’s case:

7

1. Cheryl Pliler, Chief Deputy Director, Sacramento

8

2. Martin Hoshino, former Assistant Director, Office of Investigative Services

9

3. Mansfield, CDCR Special Agent

10

4. B. Williams, CDCR Special Agent, Sacramento

11

5. Ms. Raybourn, CSP-Sacramento

12

6. D. Sims, Lieutenant, CSP-Sacramento

13

7. D. Leiber, former Correctional Lieutenant, CSP-Sacramento

14

8. R. Garcia, Correctional Officer , CSP-Sacramento

15

9. R. Mendoza, Correctional Officer, CSP-Sacramento

16

10. Dr. Paris, CSP-Sacramento

17

11. B. Powell, Sacramento

18

12. Michael Fejarah, California Department of Justice

19

13. B. Sullivan, Appeal Examiner, Sacramento

20

The following witness is omitted because plaintiff identified him as “DEAD.” 10

21
22

1. Inmate B. Hackett
II. Conclusion

23

Based on the foregoing, IT IS HEREBY ORDERED that:

24

1. Plaintiff is granted thirty days in which to file a response to this order. In his response,

25
26
27
28

plaintiff should:
10

The court recognizes that Inmate B. Hackett would likely be an essential witness at trial. But
plaintiff has identified Mr. Hackett as “DEAD” in his statement. (See ECF No. 311 at 22.) Out
of an abundance of caution, the court will order counsel for defendants to verify Mr. Hackett’s
death before omitting him from the witness list.
9

1
2
3
4
5

a. Identify one witness whom plaintiff wishes to testify regarding plaintiff’s
alleged diagnosis of post-traumatic stress disorder.
b. Identify one witness whom plaintiff wishes to testify regarding plaintiff’s
alleged diagnosis of schizophrenia.
c. If plaintiff wishes, specifically explain and justify the inclusion of M. Manski,

6

inmate Wilson, inmate Redmond, inmate Johnson, and inmate Dukes as

7

witnesses.

8
9
10
11
12

d. If plaintiff wishes, set forth his objections to the exclusion of any witness from
the essential witness list, specifically explaining why such witness is essential
to plaintiff’s case.
2. Plaintiff’s response must provide, for each witness, the following information:
a. Name of prospective witness, and brief identifying information (e.g., CDCR

13

job title or inmate identification number), including present location of

14

witness;

15

b. Whether each prospective witness has agreed to testify voluntarily;

16

c. A brief summary of the anticipated testimony of each prospective witness,

17

including a description of the relevant facts to which each witness was an eye-

18

witness or ear-witness, and all necessary clarifying information, i.e., a

19

description of the pertinent incident, when and where it occurred, who else was

20

present, and how and why the prospective witness was present when the

21

incident occurred; and

22
23

d. A statement why the anticipated testimony of each prospective witness is not
redundant of the anticipated testimony of other witnesses.

24

For each prospective witness, this information shall be provided in a single paragraph

25

that is no more than one-half page in length; hence, each page shall identify at least

26

two witnesses and all required information. Plaintiff is advised to be as specific as

27

possible in his response. General statements, such as averments about plaintiff’s right

28

to a fair trial and vague statements that a plaintiff has material testimony, will be
10

1

disregarded. Plaintiff’s response may be no more than fifteen (15) pages in length.

2

Any additional pages will be disregarded by the court, as will any additional filings,

3

such as declarations, made by plaintiff in an attempt to circumvent this order. Once

4

the court receives plaintiff’s response, it will determine whether and how to modify

5

the essential witness list set forth above and issue an order directing the parties to file

6

substantive pretrial statements.

7
8

3. Plaintiff may, in his response, notify the court if he wishes to be appointed counsel for
the purposes of trial.

9

4. Counsel for defendants Kelly, Jaffe, Martin, Chapman, Vance, and Kennedy is granted

10

thirty days from the filing of this order to ascertain, to the best of counsel’s ability,

11

whether inmate B. Hackett is deceased. If counsel determines that Mr. Hackett is

12

deceased, counsel should file formal notice of this fact with the court and serve the

13

other parties; otherwise, counsel should file and serve notice of Mr. Hackett’s last

14

known whereabouts.

15

Dated: April 17, 2015

16
17
/mana2290.witnesses

18
19
20
21
22
23
24
25
26
27
28
11