Jones v. Kuppinger et al

Filing 146

ORDER signed by Magistrate Judge Allison Claire on 08/20/18 ORDERING plaintiffs ex parte application to modify the scheduling order and to reopen discovery, 145 , is granted; the trial scheduled to commence October 29, 2018, is vacating pending furt her order of this court. The parties shall disclose their respective experts on or before October 5, 2018. The parties may conduct expert discovery through November 30, 2018. The parties shall file a Joint Pretrial Statement on or before January 25, 2019. The Clerk of Court is directed to vacate the writ ad testificandum issued by this courton April 9, 2018 138 ; after a new trial date is set, the court will issue a new writ ad testificandum to obtain plaintiffs presence at trial. (cc: OTCD)(A copy of this order mailed to the Warden, CSP LAC)(Plummer, M) Modified on 8/21/2018 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY A. JONES,

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Plaintiff,

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No. 2:13-cv-0451 AC P

v.
ORDER
P. KUPPINGER, et al.,

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Defendants.

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Plaintiff Henry Jones is a state prisoner proceeding with newly appointed counsel in this

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civil rights action filed against Correctional Officers P. Kuppinger and G. Moore. Following

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summary judgment and an unsuccessful settlement conference, this action proceeds on plaintiff’s

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Eighth Amendment excessive force claim against defendant Moore, and Eighth Amendment

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failure-to-protect claims against both defendants Moore and Kuppinger. Pursuant to the consent

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of the parties, this action now proceeds to jury trial before the undersigned. See ECF Nos. 133,

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143.

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By order filed May 25, 2018, this court directed the parties to file a Joint Pretrial

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Statement by August 10, 2018. See ECF No. 143. Instead, defense counsel Chijioke O. Ikonte

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has filed an ex parte application to modify the scheduling order and to reopen discovery. See ECF

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Nos. 144, 145 (as amended). Counsel avers that he “met and conferred with defendant’s counsel

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prior to filing this application. He does not oppose the application.” ECF No. 145 at 5 (Ikonte
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Decl., ¶ 6). Counsel seeks to conduct relevant expert discovery, and explains, id. at 4, 5:
The defendant has retained an expert that will opine to the nature and
extent of plaintiff’s injury as well as causation. In addition, the
defendant in this case is a law enforcement officer and plaintiff
anticipates that defendant will call non-retained experts that work in
law enforcement. [¶] Plaintiff will need to retain experts to testify to
the nature and extent of his injuries as well as causation.
. . . In order to effectively represent the plaintiff in this matter, I will
need to retain a use of force expert as well as an expert to opine on
the nature and extent of plaintiff’s injuries. I may need to depose his
treating physicians as non-retained experts.

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Defense counsel also states that he is awaiting receipt of plaintiff’s medical records. Id. at 3.

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Counsel requests that the scheduling order be modified as follows, id. at 4:

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[By] (1) extending time limit for expert disclosure by forty-five days;
(2) extending the time to conduct expert discovery by forty-five days
after the disclosure deadline; (3) extending the joint pretrial
statement deadline until forty-five days after the expert discovery
deadline; and (4) continuing the trial date until sixty days after the
joint pretrial statement. Defendants do not object to this proposed
modification.
The court finds that the additional information sought by plaintiff’s counsel is relevant to

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the issues and claims in this case, see Fed. R. Civ. P. 26, and could not have been previously

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obtained by plaintiff, and that the requested dates are reasonable. Although the court will defer

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setting a new trial date, plaintiff’s other requested extensions of time will be granted.

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Accordingly, for good cause shown, IT IS HEREBY ORDERED that:

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1. Plaintiff’s ex parte application to modify the scheduling order and to reopen discovery,

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ECF No. 145, is granted; the trial scheduled to commence October 29, 2018, is vacating pending

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further order of this court.

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2. The parties shall disclose their respective experts on or before October 5, 2018.

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3. The parties may conduct expert discovery through November 30, 2018.

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4. The parties shall file a Joint Pretrial Statement on or before January 25, 2019. The

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Statement shall address each of the matters set forth in Local Rule 281(b), estimate the length of

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trial, and identify all black-out dates through June 28, 2019 when either party or their counsel is

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unable to participate in trial.

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5. The court will review the Joint Pretrial Statement on the papers, without scheduling a
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pretrial conference. Thereafter, the court will issue a Pretrial Order providing further directions

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to the parties, including the deadline for filing in limine motions.

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6. The Clerk of Court is directed to vacate the writ ad testificandum issued by this court

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on April 9, 2018 (see ECF No. 138); after a new trial date is set, the court will issue a new writ ad

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testificandum to obtain plaintiff’s presence at trial.

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IT IS SO ORDERED.
DATED: August 20, 2018

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