Armentero v. Sisto et al

Filing 46

SUPPLEMENT to 39 PRETRIAL ORDER signed by Magistrate Judge Gregory G. Hollows on 3/12/2012 DIRECTING counsel for defendant to inform the court, within 7 days, whether counsel believes a settlement conference would be productive. (See order for futher details) (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LUIS LORENZO ARMENTERO,

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Plaintiff,

No. CIV S-08-2790 KJM GGH P

Defendant.

Supplement to PRETRIAL ORDER

vs.
S. WILLIS,

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In the Pretrial Order, filed on February 3, 2012, plaintiff was given twenty-one

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days to submit a timely and appropriate witness list and to specifically identify the exhibits he

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intends to offer at trial. Plaintiff was informed that, should he produce a list of witnesses (subject

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to the court’s approval) and a list of exhibits that were timely and appropriate, they would be

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considered supplements or addenda to the Pretrial Order.

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As to witnesses, plaintiff declares that the one inmate witness he seeks to call,

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Kevin Walton, CDCR # J-83251, was an ear-and-eye-witness to incidents relevant to this cause

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of action. Plaintiff will be permitted to call this inmate witness and a writ will be prepared for

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his appearance at trial, either by video or in person, at the appropriate time. The other witnesses

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besides himself and Inmate Walton that plaintiff names are CDCR employees: Warden D.K.

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Sisto; Appeals Coordinator Cervantes; Correctional Sergeant M. Bradley, R&R Sergeant R.L.
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Groeneweg; Officer L. (or F.) Sullivan; Associate Warden R.W. Cappel and the defendant, S.

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Willis. As to defendant Willis, Assoc. Warden Cappel and R.L. Groeneweg, these witnesses are

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already being called by the defendant (and, in any event, as to the defendant, he should be present

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at trial), so plaintiff need do nothing further to be able to call them as witnesses. As to, however,

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Warden Sisto; Appeals Coord. Cervantes; Corr. Sgt. Bradley and Officer Sullivan, plaintiff must

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follow the procedures outlined in both the Discovery and Scheduling Order, filed on October 23,

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2009, and the Further Scheduling Order, filed on November 3, 2011, for obtaining the attendance

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of these unincarcerated witnesses, i.e., plaintiff must submit a subpoena to the U.S. Marshal for

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each witness who is unwilling to testify voluntarily, two to four weeks before trial, and the

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$40.00 daily witness fee. If, on the other hand, any of his unincarcerated potential witnesses are

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willing to attend the trial, it is plaintiff’s responsibility to notify each such witness as to the time

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and date of trial.
As to his exhibits, plaintiff has failed to comply with the order to provide a list of

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his exhibits and has, instead, provided the documents themselves, in no particular order.

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Plaintiff’s proposed exhibits include:

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1. The summons and the April 23, 2009 amended complaint with attached exhibit
copies (which the court has listed and numbered 2 through 17, as plaintiff should have done):

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2. May 23, 2008 Director’s Level Appeal Decision IAB Case No. 0724312;

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3. July 2, 2007 602 appeal;

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4. Sept. 26, 2007 602 appeal Log No. CSP-S 07-03179;

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5. July 5, 2007 screening form returning appeal documents to plaintiff;

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6. Nov. 7, 2007 first level appeal response for appeal Log No. CSP-S 07-03179;

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7. Jan. 23, 2008 second level appeal response for appeal Log No. CSP-S 07-

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03179;
8. Nov. 1, 2006 Mental Health Interdisciplinary Progress Notes showing
Remeron under heading “Psych Medications” & progress notes showing plaintiff to be a CCCMS
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new arrival on Oct. 4, 2006;

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9. Form showing plaintiff’s “housing restrictions” and “disability/assistance”
classification;

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10. Plaintiff’s inmate pass to “chow hall” on June 24, 2007 stating “No ID” under
“Reason”;

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11. July 31, 2007 inmate request for interview to Appeals Coordinator Office by

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plaintiff regarding a July 13, 2007 602 complaint against defendant Willis to which plaintiff

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states he has had no response;

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12. Aug. 8, 2007 inmate request for interview to defendant Willis concerning the
July 13, 2007 602 complaint to which plaintiff states he has received no response;

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13. July 31, 2007 inmate request for interview to Appeals Coordinator Office by

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plaintiff regarding a July 13, 2007 602 complaint against defendant Willis to which plaintiff

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states he has had no response;

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14. Aug. 26, 2007 inmate request for interview to Appeals Coordinator Office by

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plaintiff regarding the July 13, 2007 602 complaint against defendant Willis which was returned

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to plaintiff by appeals coordinator;

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15. Sept. 4, 2007 inmate request for interview by plaintiff still awaiting a
response;
16. Sept. 6, 2007 first level appeal screening returning documents to plaintiff
stating “your appeal is incomplete”;

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17. Sept. 17, 2007 complaint from plaintiff to the appeals coordinator;

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18. Plaintiff’s reply to defendant’s Answer (a document not contemplated within

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the Federal Rules of Civil Procedures and the Local Rules);

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19. Plaintiff’s first set of interrogatories served upon defendant Willis;

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20. Defendant Willis’ responses to plaintiff’s interrogatories, set one;

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21. Plaintiff’s statement of undisputed facts from his opposition to defendant’s
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motion for summary judgment;

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22. Plaintiff’s “notice of motion and motion for summary judgment” (which was
construed by the court as his opposition to defendant’s motion for summary judgment)1;

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23. Plaintiff’s objections to Findings and Recommendations;

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24. Plaintiff’s pretrial statement.

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Plaintiff’s proposed Exhibits 1, 18, 21, 22, 23 and 24 are not appropriate trial

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exhibits and will be excluded. As for Exhibits 2 through 17, there must be some form of

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authentication for plaintiff to be able to present these documents as exhibits.

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To the extent that plaintiff intended to posit objections to the Pretrial Order by his

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filings on March 1, 2012 (docket #’s 42 & 45), he has failed to do so. Instead, he argues the

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merits of his case and/or objects to defendant Willis’ intention “to publish various portions of

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plaintiff’s central file to the jury”). See docket # 45. Within the Pretrial Order, the parties are

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informed of the appropriate time to object to the proposed exhibits of the opposing party, i.e.,

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fourteen days before trial. See Pretrial Order, p. 6.

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In the Pretrial Order, the undersigned directed either party following a

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presentation to plaintiff of certain documents by defendant’s counsel which counsel intended to

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make, to inform the court whether a settlement conference would be helpful. Plaintiff has filed a

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statement that indicates some willingness to participate in a settlement conference. Counsel for

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defendant is directed to inform the court within seven days whether counsel believes a settlement

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See Findings and Recommendations, filed on July 12, 2011, adopted by Order (with an
exception in the text not relevant here), filed on September 26, 2011.
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conference would be productive. If defendant’s counsel fails to do so or otherwise indicates that

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a settlement conference would not be beneficial, this matter will proceed to trial.

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IT IS SO ORDERED.
DATED: March 12, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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arme2790.ptosp

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