Draper v. Rosairo et al

Filing 137

AMENDED ORDER signed by Judge Kimberly J. Mueller on 4/3/14. The parties' MOTIONS on limine are due by 4/7/14, oppositions due by 4/14/14, and any replies by 4/21/14. The parties should inform the court whether resolution of any of the motion s might require an evidentiary presentation. Each party is granted fourteen days from the date of this order to file objections to the same. If no objections are filed, the order will become final without further order of this court.(Mena-Sanchez, L) Modified on 4/3/2014 (Mena-Sanchez, L).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN CLINT DRAPER,

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Plaintiff,

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No. 2:10-CV-0032 KJM EFB

v.

AMENDED ORDER

D. ROSARIO, et al.,

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Defendant.

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On March 20, 2014, the court conducted a final pretrial conference. Victor Meng, Robert

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O’Leary and Judson Lobdell appeared for plaintiff Draper, who was present in court; David

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Carrasco and Rene Lucaric appeared telephonically for defendant Rosario.
After hearing, and good cause appearing, the court makes the following findings and

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orders:

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JURISDICTION/VENUE
Jurisdiction is predicated on 28 U.S.C. § 1343(a). Jurisdiction and venue are not

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contested.

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JURY/NON-JURY
The parties have requested a jury trial and agree to an eight member jury.

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UNDISPUTED FACTS

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1. California State Prison-Solano is a medium security institution operated by the
California Department of Corrections and Rehabilitation (CDCR).

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2. On September 9, 2009, plaintiff John Clint Draper was an inmate housed in Building
Four at CSP-Solano.

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3. Draper was classified as mobility impaired and was authorized to use a cane.

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4. Defendant David Rosario was a correctional officer assigned to CSP-Solano and on

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September 9, 2009 was working as a floor officer in Building Four.

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5. Correctional Officer Pyong Chan Lee was working as the control booth officer and

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Correctional Officer Eddie Coulter was working as a floor officer in Building Four on September

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9, 2009.

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6. Coulter, Lee and Rosario were the only officers assigned to working in Building Floor
during the morning of September 9, 2009.

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7. Around 11:30 a.m., Rosario ordered Draper to report to the office in Building Four.

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8. When Draper reported to the office, Coulter and Rosario were there and Lee was in

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the control booth.

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9. Rosario talked to Draper about the latter’s work performance as a porter.

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10. Draper disagreed with Rosario’s assessment and the two got into a verbal exchange in

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the dayroom outside the office.

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11. Rosario ordered Draper to drop his cane and put his hands behind his back so Rosario
could handcuff Draper.

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12. Draper complied and Rosario handcuffed him

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13. The incident involving Draper and Rosario took place in the Day Room of Building

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Four, immediately in front of the sally port grill gate.

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14. Lee activated his personal alarm as the result of the incident and CDCR officers

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arrived in response.

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DISPUTED FACTUAL ISSUES1

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1. Whether Rosario slammed Draper into the sally port grill gate in Building Four.

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2. Whether Draper jumped off the sally port grill gate and launched himself backwards at

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Rosario in an attempt to assault Rosario.

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3. Whether Rosario slammed Draper’s head into the ground while Draper was face down
on the ground.

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4. Whether Draper suffered any injury as the result of the incident or, if he did, the extent
of any injuries.

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5. Whether a registered nurse adequately examined Draper after the incident.
SPECIAL FACTUAL INFORMATION

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None applicable.
DISPUTED EVIDENTIARY ISSUES/MOTIONS IN LIMINE

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The parties will submit their motions in limine in accordance with the schedule set below,

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except for plaintiff’s request to obtain the attendance of incarcerated witnesses, which shall be

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addressed according to the schedule set by ECF No. 130.

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The parties’ motions on limine are due by April 7, oppositions due by April 14, and any

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replies by April 21, 2014. The parties should inform the court whether resolution of any of the

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motions might require an evidentiary presentation.

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STIPULATIONS/AGREED STATEMENTS

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The parties have stipulated as to the following facts:

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1. Rosario acted under color of state law.

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2. The medical records offered as plaintiff’s exhibits 1-60 and defendants’ exhibits 7-35

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are authentic.

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3. The photographs of Building Four taken on January 22, 2014 and offered as plaintiff’s

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exhibit 66 and defendant’s exhibit 35 are authentic.

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The court acknowledges plaintiff’s claim that the question whether a post-incident interview
with plaintiff was properly handled is in dispute, but does not include that in the disputed facts as
it is not part of the claim itself, but rather may provide a basis for a jury instruction or other
action. As the parties observed, this will be addressed during the motions in limine.
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4. Defendant’s proposed exhibits 1-6, documents from plaintiff’s central file, are

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authentic.

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RELIEF SOUGHT

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Plaintiff seeks compensatory or nominal damages, punitive damages, costs and attorneys’

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fees. Defendant seeks a judgment in his favor and an award of costs.

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POINTS OF LAW

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The parties shall alert the court to disputes about the applicable law and legal standards.

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Trial briefs addressing these points more completely shall be filed with this court no later than

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seven days prior to the date of trial in accordance with Local Rule 285.

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ABANDONED ISSUES
The court granted defendant’s motions to dismiss Draper’s claim that his Fourteenth

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Amendment right to procedural due process was violated, that his Eighth Amendment right was

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violated by prison officials’ deliberate indifference to his serious medical needs, and that he was

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subjected to a biased disciplinary hearing.

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WITNESSES

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Plaintiff intends to call the following witnesses:

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John Clint Draper

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Richard Shepard, CDC No. H40705

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Frank Thompson, Jr. CDC No. C07772

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Mario Thompson, CDC No. T54097

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James Fowler, Correctional Sergeant

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Allen Peel, Correctional Sergeant

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John Edward Mitchell, CDC No.H38255

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Michael Dwayne Haynes, CDC No. J78758

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Dr. Martin Chenevert—expert witness

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Custodians of records

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Grant Fine, potential impeachment witness

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Defendant intends to call the following witnesses:
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David Rosario

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Pyong Chun Lee

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Edward Coulter

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Dr. Bruce Barnett—rebuttal expert

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Custodians of records.

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Each party may call any witnesses designated by the other.

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A.

The court will not permit any other witness to testify unless:

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(1) The party offering the witness demonstrates that the witness is for the purpose

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of rebutting evidence that could not be reasonably anticipated at the pretrial

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conference, or

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(2) The witness was discovered after the pretrial conference and the proffering

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party makes the showing required in “B,” below.

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B.

Upon the post pretrial discovery of any witness a party wishes to present at trial,

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the party shall promptly inform the court and opposing parties of the existence of the unlisted

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witnesses so the court may consider whether the witnesses shall be permitted to testify at trial.

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The witnesses will not be permitted unless:

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(1) The witness could not reasonably have been discovered prior to the

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discovery cutoff;

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(2) The court and opposing parties were promptly notified upon discovery

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of the witness;

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(3) If time permitted, the party proffered the witness for deposition; and

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(4) If time did not permit, a reasonable summary of the witness’s testimony

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was provided to opposing parties.

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EXHIBITS, SCHEDULES AND SUMMARIES
Plaintiff’s exhibits are identified on attachment A. At trial, plaintiff’s exhibits shall be
listed numerically.
Defendant’s exhibits are identified on attachment B. At trial, defendant’s exhibits shall be
listed alphabetically.
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The court encourages the parties to generate a joint exhibit list to the extent possible.
Joint Exhibits shall be identified as JX and listed numerically, e.g., JX-1, JX-2.

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All exhibits must be premarked.

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The parties must prepare exhibit binders for use by the court at trial, with a side tab

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identifying each exhibit in accordance with the specifications above. Each binder shall have an

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identification label on the front and spine.

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The parties must exchange exhibits no later than twenty-eight days before trial. Any
objections to exhibits are due no later than fourteen days before trial.

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A. The court will not admit exhibits other than those identified on the exhibit lists
referenced above unless:

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1. The party proffering the exhibit demonstrates that the exhibit is for the purpose

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of rebutting evidence that could not have been reasonably anticipated, or

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2. The exhibit was discovered after the issuance of this order and the proffering

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party makes the showing required in Paragraph “B,” below.

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B. Upon the discovery of exhibits after the discovery cutoff, a party shall promptly

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inform the court and opposing parties of the existence of such exhibits so that the court may

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consider their admissibility at trial. The exhibits will not be received unless the proffering party

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demonstrates:

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1. The exhibits could not reasonably have been discovered earlier;

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2. The court and the opposing parties were promptly informed of their existence;

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3. The proffering party forwarded a copy of the exhibits (if physically possible) to

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the opposing party. If the exhibits may not be copied the proffering party must

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show that it has made the exhibits reasonably available for inspection by the

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opposing parties.

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DEPOSITION TRANSCRIPTS

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Counsel must lodge the sealed original copy of any deposition transcript to be used at trial

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with the Clerk of the Court no later than fourteen days before trial.

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FURTHER DISCOVERY OR MOTIONS

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Discovery closed on October 6, 2012. The court granted plaintiff’s motion to reopen

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discovery and set a new discovery deadline of January 31, 2014.

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The parties do not anticipate additional discovery.

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AMENDMENTS/DISMISSALS

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As noted above, several claims were dismissed during the course of the litigation.
SETTLEMENT

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On February 6, 2014, he parties attended a settlement conference conducted by the
Honorable Dale A. Drozd. The case did not settle and the parties do not believe a further

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settlement conference will be helpful.

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JOINT STATEMENT OF THE CASE

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The parties should submit a joint statement of the case fourteen days before trial.
SEPARATE TRIAL OF ISSUES

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The parties do not seek a separate trial of any issues.
IMPARTIAL EXPERTS/LIMITATION OF EXPERTS

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Not applicable.

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ATTORNEYS' FEES

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.

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ESTIMATED TIME OF TRIAL/TRIAL DATE

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Plaintiff will seek attorneys’ fees if he is the prevailing party.

Jury trial is set for May 5, 2014 at 9:00 a.m. in Courtroom Three before the Honorable

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Kimberly J. Mueller. Trial is anticipated to last three to four days. The parties are directed to

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Judge Mueller’s trial schedule outlined at the “important information” link located on her web

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page on the court’s website.

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PROPOSED JURY VOIR DIRE AND PROPOSED JURY INSTRUCTIONS

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The parties shall file any proposed jury voir dire seven days before trial. Each party will
be limited to ten minutes of jury voir dire.
The court directs counsel to meet and confer in an attempt to generate a joint set of jury
instructions and verdicts. The parties shall file any such joint set of instructions fourteen days
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before trial, identified as “Jury Instructions and Verdicts Without Objection.” To the extent the

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parties are unable to agree on all or some instructions and verdicts, their respective proposed

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instructions are due fourteen days before trial.

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Counsel shall e-mail a copy of all proposed jury instructions and verdicts, whether agreed

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or disputed, as a word document to [e-mail] no later than fourteen days

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before trial; all blanks in form instructions should be completed and all brackets removed.

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Objections to proposed jury instructions must be filed seven days before trial; each

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objection shall identify the challenged instruction and shall provide a concise explanation of the

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basis for the objection along with citation of authority. When applicable, the objecting party

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shall submit an alternative proposed instruction on the issue or identify which of his or her own

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proposed instructions covers the subject.

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MISCELLANEOUS

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Trial briefs are due seven days before trial.
OBJECTIONS TO PRETRIAL ORDER
Each party is granted fourteen days from the date of this order to file objections to the

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same. If no objections are filed, the order will become final without further order of this court.

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DATED: April 3, 2014.

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UNITED STATES DISTRICT JUDGE

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ATTACHMENT A

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PLAINTIFF’S EXHIBIT LIST

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#

Date

Document

Bates Number

Plaintiff’s Medical Records
1.

January 25, 1994

X-Ray Request

DRAPER002302

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2.

December 12, 2007

Radiology Report

DRAPER001463

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3.

May 6, 2008

Radiology Report

DRAPER000494

8

4.

December 10, 2008

Interdisciplinary Progress Notes

DRAPER000148

5.

December 22, 2008

Comprehensive Accommodation Chrono

DRAPER000531

6.

August 20, 2009

Interdisciplinary Progress Notes

DRAPER000126

7.

August 26, 2009

Radiology Report

DRAPER000492

8.

September 9, 2009

Medical Report of Injury or Unusual
Occurrence

Dkt. 70-3 at 13

9.

September 11, 2009

Health Care Services Request Form

Dkt. 65-1 at 21

10.

September 17, 2009

Interdisciplinary Progress Notes

DRAPER000124-5

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11.

September 17, 2009

Physician’s Orders

DRAPER000623

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12.

September 28, 2009

Radiology Report

DRAPER000490

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13.

September 28, 2009

Radiology Report

DRAPER000491

14.

October 20, 2009

Health Services Request Form

Dkt. 65-1 at 20

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13

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15.

October 29, 2009

Radiology Report

DRAPER000489

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16.

November 1, 2009

Health Services Request Form

Dkt. 65-1 at 19

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17.

November 5, 2009

Interdisciplinary Progress Notes

DRAPER003786

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18.

November 16, 2009

Radiology Report

DRAPER000487

19.

November 16, 2009

Radiology Report

DRAPER000488

20.

November 22, 2009

Health Services Request Form

Dkt. 65-1 at 18

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June 8, 2010

Health Care Servies Request Form

DRAPER003784

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22.

July 21, 2010

Report by Salinas Valley Radiologists, Inc.

DRAPER000486

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July 29, 2010

Physician Request for Services

Dkt. 65-1 at 7

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24.

July 29, 2010

Interdisciplinary Progress Notes

Dkt. 65-1 at 8

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June 8, 2010

Health Care Services Request Form

DRAPER003784

26.

July 21, 2010

Report by Salinas Valley Radiologists, Inc.

DRAPER000486

27.

February 9, 2011

Primary Care Provider Progress Note

DRAPER003795

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22

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PLAINTIFF JOHN CLINT DRAPER’S EXHIBIT LIST
CASE NO. 2:10-CV-00032-KJM-EFB
sf-3397311

1

1

#

Date

Document

Bates Number

2

28.

May 23, 2011

Health Care Services Request Form

Dkt. 65-1 at 14

3

29.

November 1, 2011

Primary Care Provider Progress Note

DRAPER000114

30.

January 20, 2012

Encounter Form: Musculoskeletal
Complaint (Non-Traumatic)

DRAPER000096-8

5

31.

January 31, 2012

Physician Request for Services

DRAPER000553

6

32.

January 31, 2012

Primary Care Provider Progress Note

DRAPER000094

33.

February 29, 2012

Primary Care Provider Progress Note

Dkt. 65-1 at 5

34.

March 5, 2012

Health Care Services Request Form

DRAPER000085

35.

March 8, 2012

Report by Valley Radiology Medical
Associates, Inc.

DRAPER000481483

36.

April 11, 2012

Primary Care Provider Progress Note

DRAPER000084

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7
8
9
10

37.

May 2, 2012

Interdisciplinary Progress Notes

DRAPER000082

11

38.

May 9, 2012

Interdisciplinary Progress Notes

DRAPER000081

12

39.

May 16, 2012

Interdisciplinary Progress Notes

DRAPER000080

13

40.

May 23, 2012

Interdisciplinary Progress Notes

DRAPER000076

41.

June 25, 2012

Health Care Services Request Form

DRAPER000074

42.

July 10, 2012

Primary Care Provider Progress Note

DRAPER000073

43.

July 10, 2012

Refusal of Examination and/or Treatment

DRAPER000547

44.

August 1, 2012

Primary Care Provider Progress Note

DRAPER00006869

45.

August 31, 2012

Medical Progress Note

DRAPER00006465

46.

September 11, 2012

Primary Care Provider Progress Note

DRAPER000062

47.

September 30, 2012

Electromyography/Nerve Conduction Study

DRAPER000474–
80

48.

October 11, 2012

Primary Care Provider Progress Note

DRAPER000061

49.

November 21, 2012

Primary Care Provider Progress Note

DRAPER000058

50.

January 25, 2013

Encounter Form: Musculoskeletal
Complaint (Non-Traumatic)

DRAPER00005355

51.

January 29, 2013

Health Care Services Request Form

DRAPER000051

52.

February 6, 2013

Refusal of Examination and/or Treatment

DRAPER000538

53.

April 4, 2013

Health Care Services Request Form

DRAPER002429

54.

April 15, 2013

Primary Care Provider Progress Note

DRAPER000048

55.

June 7, 2013

Encounter Form: Musculoskeletal
Complaint (Non-Traumatic)

DRAPER00003941

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26
27
28

PLAINTIFF JOHN CLINT DRAPER’S EXHIBIT LIST
CASE NO. 2:10-CV-00032-KJM-EFB
sf-3397311

2

1

#

Date

Document

Bates Number

2

56.

June 11, 2013

Primary Care Provider Progress Note

DRAPER000037

3

57.

October 15, 2013

Health Care Services Request Form

DRAPER001467

58.

October 17, 2013

Encounter Form: Musculoskeletal
Complaint (Non-Traumatic)

DRAPER001468–
69

59.

December 4, 2013

Health Care Services, Physician Request for
Services

DRAPER002427

60.

December 9, 2013

Report by California Correctional Health
Care Services

DRAPER00229697

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6
7
8

Miscellaneous
61.

Diagram of Building Four, California State
Prison, Solano

62.

California Department of Corrections and
Rehabilitation, Adult Institutions, Program,
and Parole, Operations Manual

63.

California Department of Corrections and
Rehabilitation, Richard A. McGee
Correctional Training Center, Cadet
Handbook

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13

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64.

September 9, 2009

Videotape Interview of John Clint Draper

65.

September 30, 2009

Videotape Interview of John Clint Draper

66.

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January 22, 2014

Photographs of California State Prison,
Solano

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67.

Rule 1006 Summary of Medical Records
Concerning Right Upper Extremity

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Medical Text
68.

Renfree K.J., and T.W. Wright, Anatomy
and biomechanics of the acromioclavicular
and sternoclavicular joints, Clin. Sports
Med. 2003;22: 219–237

69.

Shaffer B.S., Painful conditions of the
acromioclavicular joint, J. Am. Acad.
Orthop. Surg. 1999;7(3):176

70.

Koehler, Scott M., Acromioclavicular joint
injuries, UpToDate, available online at
http://www.uptodate.com (May 13, 2013)

71.

Koehler, Scott M., Acromioclavicular joint
disorders, UpToDate, available online at
http://www.uptodate.com (January 14,
2014)

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26
27
28

PLAINTIFF JOHN CLINT DRAPER’S EXHIBIT LIST
CASE NO. 2:10-CV-00032-KJM-EFB
sf-3397311

3

1
2

#

73.

Jing Jin, et al., Factors affecting therapeutic
compliance: A review from the patient’s
perspective, 4 Ther. & Clin. Risk Mgmt.
269 (February 2008)

74.

Alex J. Mitchell and Thomas Selmes, Why
don't patients take their medicine? Reasons
and solutions in psychiatry, 13 Advances in
Psychiatric Treatment 336 (2007)

75.

Silk, K.R., Personality disorders, in: A.
Skodol (Ed.), UpToDate (2014)

76.

Carol S. North M.D., M.P.E., and Sean H.
Yutzy M.D., The Psychiatric Diagnosis, In
Goodwin and Guze's Psychiatric Diagnosis
(6th Ed.) (Oxford University Press, Inc.
2010)

6

8
9
10
11
12

Bates Number

Miller, Marc L., Muscle examination in the
evaluation of weakness, UpToDate,
available online at
http://www.uptodate.com (August 23, 2012)

5

7

Document

72.

3
4

Date

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15
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17
18
19
20
21
22
23
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25
26
27
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PLAINTIFF JOHN CLINT DRAPER’S EXHIBIT LIST
CASE NO. 2:10-CV-00032-KJM-EFB
sf-3397311

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ATTACHMENT B
DEFENDANT’S TRIAL EXHIBITS—AMENDED LIST
No.

Date

Document

Reference

Plaintiff’s Central File Documents
1.

October 16, 1991

Abstract of Judgment

DRAPER002555

2.

September 9, 2009

Rules Violation Report

DRAPER0002790-95

3.

September 9, 2009

Medical Report of Injury

Dkt. 70-3 at 13

4.

September 9, 2009

Inmate Account of Excessive Force

Dkt. 70-3 at 42

5.

September 16, 2009

Incident Commander’s Review/Critique

Dkt. 70-3 at 44-53

6.

October 7, 2009

Memorandum on Interviews with Inmates

Dkt. 70-3 at 36-41

Plaintiff’s Medical File Documents
7.

April 23, 2003

Radiology Report

DRAPER000497

8.

December 4, 2006

Radiology Report

DRAPER000496

9.

April 30, 2008

Physician Order

DRAPER000650

10.

April 30, 2008

Interdisciplinary Progress Note

DRAPER000152

11.

May 6, 2008

Radiology Report

DRAPER000494

12.

December 10, 2008

Physician’s Order

DRAPER000642

13.

December 10, 2008

Interdisciplinary Progress Note

DRAPER000148

14.

August 20, 2009

Interdisciplinary Progress Note

DRAPER000126

15.

August 26, 2009

Radiology Report

DRAPER000492

16.

September 26, 2009

Interdisciplinary Progress Note

DRAPER000124-25

17.

September 28, 2009

Radiology Report

DRAPER000490

18.

September 28, 2009

Radiology Report

DRAPER000491

19.

October 29, 2009

Radiology Report

DRAPER000489

20.

November 5, 2009

Interdisciplinary Progress Note

DRAPER003786

21.

November 16, 2009

Radiology Report

DRAPER000487

22.

November 16, 2009

Radiology Report

DRAPER000488

23.

January 6, 2010

Interdisciplinary Progress Note

24.

June 9, 2010

Interdisciplinary Progress Note

25.

July 27, 2010

MRI Report

DRAPER000486

26.

July 29, 2010

Health Care Services Request

Dkt. 65-1 at 7

No.

Date

Document

Reference

27.

July 29, 2010

Interdisciplinary Progress Note

Dkt. 65 at 11

28.

August 11, 2010

Interdisciplinary Progress Note

29.

January 20, 2011

Interdisciplinary Progress Note

30.

January 11, 2011

Reasonable Accommodation Request

DRAPER003793-94

31.

February 9, 2011

Primary Care Provider Progress Note

DRAPER003795

32.

February 11, 2011

Health Care Services Request

Dkt. 65-1 at 15

33.

March 8, 2012

X-ray Reports

DRAPER000481-83

OtherExhibits
34.

January 22, 2014

3/24/2014

Photos of Incident Scene, CSP-Solano