McMillan v. Pfile, et al.

Filing 176

FINAL PRETRIAL ORDER signed by Chief District Judge Kimberly J. Mueller on 2/15/22 ORDERING that Jury Trial set for 5/17/2022 at 09:00 AM in Courtroom 3 (KJM) before Chief District Judge Kimberly J. Mueller. 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. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Edwin McMillan,

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No. 2:13-cv-00578-KJM-KJN
Plaintiff,

FINAL PRETRIAL ORDER

v.
S. Ringler, et al.,

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Defendants.

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On February 10, 2022, the court conducted a final pretrial conference. Matthew Becker

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appeared for plaintiff Edwin McMillan. Joseph R. Wheeler and Garrett Seuell appeared for

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defendants Ringler, Scotland, and Zuniga. After hearing, and good cause appearing, the court

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makes the following findings and orders:

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JURISDICTION AND VENUE

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Jurisdiction is predicated on 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343. Venue is

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proper in this district because the events in dispute took place within this district. Jurisdiction and

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venue are not contested.

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JURY / NON-JURY

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The trial will be by jury. The jury will be composed of eight jurors.

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UNDISPUTED FACTS

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1.

At all times relevant to the claims in this action, Plaintiff Edwin McMillan was an

inmate incarcerated at California State Prison—Solano.

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2.

At all times relevant to the claims in this action, Defendants Scotland, Ringler, and

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Zuniga were employed by the California Department of Corrections and Rehabilitation (CDCR)

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at California State Prison—Solano.

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3.

Plaintiff’s bunk area or a common area near where Plaintiff and others were bunked.

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On November 13, 2012, Officer Ringler confiscated an iPhone during a search of

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Plaintiff received a Rules Violation Report (SD-12-11-0449) for possession of a

cell phone.

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5.

On December 5, 2012, Officers Ringler and Zuniga conducted a search of

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Plaintiff’s bunk area. Officers Ringler and Zuniga confiscated an iPhone and various other

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property items.

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6.

Plaintiff received a Rules Violation Report (SD-12-12-0470) for possession of a

cell phone following the December 5, 2012 search.

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7.

Plaintiff was transferred to Administration Segregation in December 2012.

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8.

Bulletins with accusations about Ringler were posted around Facility D.

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9.

Lieutenant Henry transferred Plaintiff to Administrative Segregation on

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January 16, 2013, due to information identifying Plaintiff as the author of the bulletins.

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10.

On January 17, 2013, Ringler prepared a 128-B chrono regarding information

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related to the bulletins, in which he requested that Plaintiff be transferred due to concerns

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regarding the safety and security of the institution.

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Plaintiff received a Rules Violation Report (SD-13-01-0013) for misuse of a state

computer in connection with the bulletins.

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12.

During an ICC on March 27, 2014, the committee, chaired by Chief Deputy

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Warden Arnold, recommended that Plaintiff be transferred to Folsom State Prison.

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DISPUTED FACTUAL ISSUES

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which he had a hearing in October 2012.

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Whether Ringler made hostile comments to Plaintiff about Plaintiff’s case, for

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Whether the search of Plaintiff’s bunk area on December 5, 2012, was performed

in retaliation for Plaintiff’s protected activities.

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Whether the December 5, 2012 search advanced legitimate correctional goals.

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4.

Whether the confiscation of property from Plaintiff’s bunk area on December 5,

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2012, was performed in retaliation for Plaintiff’s protected activities.

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2012, advanced legitimate correctional goals.

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6.

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8.

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What dates Plaintiff was in Administrative Segregation and what level of

administrative segregation was applied during what times.

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Whether the review committee punished Plaintiff for possession of a cell phone by

the review committee (pertaining to the December 5, 2012 search).

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Whether Ringler and Zuniga’s alleged conduct was performed in furtherance of a

conspiracy.

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Whether Officers Ringler and Zuniga destroyed Plaintiff’s Koran during the

December 5, 2012 search.

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Whether the confiscation of property from Plaintiff’s bunk area on December 5,

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Whether Ringler authored the 128-B chrono in retaliation for Plaintiff’s protected

activities.

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Whether the 128-B chrono authored by Ringler advanced legitimate correctional

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goals.

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DISPUTED EVIDENTIARY ISSUES

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1.

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searches.

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2.

Whether Defendants may introduce evidence about or mention phones found in

Whether Defendants may introduce evidence about or mention Plaintiff’s

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incarceration offense.

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3.

Whether Defendants may introduce evidence about or mention the length of

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Plaintiff’s sentence.

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RELIEF SOUGHT

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Plaintiff requests $225,000 in compensatory damages and an unspecified amount of

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punitive damages.

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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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WITNESSES
The plaintiff’s witnesses are listed in Attachment A. The defendant’s witnesses are listed
in Attachment B. Each party may call any witnesses designated by the other.
A.

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The court will not permit any other witness to testify unless:
(1)

The party offering the witness demonstrates that the witness is for the

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purpose of rebutting evidence that could not be reasonably anticipated at

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the pretrial conference, or

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(2)

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The witness was discovered after the pretrial conference and the proffering
party makes the showing required in “B,” below.

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

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the unlisted witnesses so the court may consider whether the witnesses shall be

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permitted to testify at trial. The witnesses will not be permitted unless:

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(1)

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discovery cutoff;
(2)

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The witness could not reasonably have been discovered prior to the

The court and opposing parties were promptly notified upon discovery of
the witness;

(3)

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

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(4)

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If time did not permit, a reasonable summary of the witness’s testimony
was provided to opposing parties.

EXHIBITS, SCHEDULES AND SUMMARIES

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Plaintiff’s exhibits are identified on attachment C. At trial, plaintiff’s exhibits shall be

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listed numerically. Defendant’s exhibits are identified on attachment D. At trial, defendant’s

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exhibits shall be listed alphabetically, first A, B, C, etc., then AA, AB, AC, etc., then BA, BB,

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BC, and so on through ZZ. The court encourages the parties to generate a joint exhibit list to the

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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.
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.
A.

The court will not admit exhibits other than those identified on the exhibit lists

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referenced above unless:

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1.

The party proffering the exhibit demonstrates that the exhibit is for the

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purpose of rebutting evidence that could not have been reasonably

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anticipated, or

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2.

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The exhibit was discovered after the issuance of this order and the
proffering party makes the showing required in Paragraph “B,” below.

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

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court may consider their admissibility at trial. The exhibits will not be received

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unless the proffering party 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

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existence;
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3.

The proffering party forwarded a copy of the exhibits (if physically

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possible) to the opposing party. If the exhibits may not be copied the

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proffering party must show that it has made the exhibits reasonably

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available for inspection by the opposing parties.

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The court will not retain exhibits after trial. The court will address any motions for trial

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protective orders at trial.

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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
with the Clerk of the Court on the first day of trial.
SETTLEMENT

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The parties have engaged in two settlement conferences with the Court, including with

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Magistrate Judge Newman and with Magistrate Judge Brennan. Settlement negotiations have

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been unsuccessful.

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MOTIONS IN LIMINE

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Defendant Ringler has filed motions in limine. ECF No. 168. Oppositions to these

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motions are due no later than fourteen days before the first day of trial. The court will hear

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replies, if any, orally on the first day of trial. The court anticipates resolving all motions in limine

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in a bench order on the first day of trial.

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JOINT STATEMENTS OF THE CASE

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The parties shall file a proposed joint statement of the case no later than seven days

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before the first day of trial.

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SEPARATE TRIAL OF ISSUES

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The parties’ joint request to bifurcate the trial on the question of punitive damages is

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granted. Neither party will present evidence regarding plaintiffs’ request for punitive damages

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during the first phase of trial.

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ATTORNEY’S FEES

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Plaintiff is represented by appointed counsel. 42 U.S.C. § 1988 permits an award of

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attorney’s fees in the event of a favorable outcome.

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TRIAL DATE AND ESTIMATED LENGTH OF TRIAL

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Jury trial is set for May 17, 2022 at 9:00 a.m. in Courtroom Three before the Honorable

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Kimberly J. Mueller. Trial is anticipated to last five days. The parties are directed to Judge

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Mueller’s trial schedule outlined on her web 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 the first day of trial.
Each party will be limited to ten minutes of jury voir dire.

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The court directs counsel to meet and confer in an attempt to generate a joint set of jury

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instructions and verdicts. The parties shall file any such joint set of instructions fourteen days

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before the first day of trial, identified as “Jury Instructions and Verdicts Without Objection.”

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To the extent the parties are unable to agree on all or some instructions and verdicts, their

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respective proposed 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 the first day of trial; all blanks in form instructions should be completed and all brackets

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removed.

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Objections to proposed jury instructions must be filed seven days before the first day of

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trial; each objection shall identify the challenged instruction and shall provide a concise

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

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objecting party shall submit an alternative proposed instruction on the issue or identify which of

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his or her own proposed instructions covers the subject.

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OBJECTIONS TO THIS ORDER AND CONCLUSION

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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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IT IS SO ORDERED.
DATED: February 15, 2022.

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ATTACHMENT A: PLAINTIFF’S WITNESS LIST
Plaintiff Edwin McMillan can be reached by and through Counsel for Plaintiff at Becker
Law Practice; 333 University Ave #200; Sacramento, CA 95825; [phone].

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ATTACHMENT B: DEFENDANTS’ WITNESS LIST
1.

Defendant A. Scotland will provide testimony regarding the claims against him

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and the other Defendants in this action, including but not limited to Plaintiff’s retaliation and

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conspiracy claims based on the search, confiscation, and alleged destruction of his property, and

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also the events related to the bulletins regarding Defendant Ringler.

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2.

Defendant S. Ringler will provide testimony regarding the claims against him and

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the other Defendants in this action, including but not limited to Plaintiff’s retaliation and

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conspiracy claims based on the search, confiscation, and alleged destruction of his property, and

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also the events related to the bulletins regarding Ringler.

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3.

Defendant J. Zuniga will provide testimony regarding the claims against him and

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the other Defendants in this action, including but not limited to Plaintiff’s retaliation and

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conspiracy claims based on the search, confiscation, and alleged destruction of his property, and

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also the events related to the bulletins regarding Ringler.

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4.

Officer M. Williamson will provide testimony regarding the claims against

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Defendants in this action, including but not limited to Plaintiff’s retaliation and conspiracy claims

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based on the search, confiscation, and alleged destruction of his property.

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5.

Officer M. Ruiz will provide testimony regarding the claims against Defendants in

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this action, including but not limited to Plaintiff’s retaliation claims based on both the search and

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confiscation of his property.

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6.

R. Muldong will provide testimony about the bulletins regarding Ringler,

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including but not limited to the bulletins themselves and statements made by Plaintiff regarding

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the bulletins.

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7.

Officer M. Hogan will provide testimony about the bulletins regarding Ringler,

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including but not limited to the bulletins themselves and statements made by Plaintiff regarding

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the bulletins.

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8.

Lieutenant S.W. Brown will provide testimony regarding a rules violation that

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Plaintiff received as a result of being in possession of contraband, including but not limited to any

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statements made by Plaintiff during the hearing.
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Lieutenant G. Bickham will provide testimony regarding a rules violation that

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Plaintiff received as a result of being in possession of contraband, including but not limited to any

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statements made by Plaintiff during the hearing.

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10.

Lieutenant M. Brida will provide testimony regarding several rules violations: a

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rules violation that Plaintiff received as a result of being in possession of contraband, and a rules

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violation that Plaintiff received related to the bulletins regarding Ringler. Brida’s testimony will

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include, but will not be limited to, any statements made by Plaintiff during the hearings.

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11.

Lieutenant M. Sanchez will provide testimony regarding a rules violation that

Plaintiff’s bunkmate (McClelan) received as a result of being in possession of contraband,
including but not limited to any statements made by McClelan during the hearing.
12.

Lieutenant D. McLain will provide testimony regarding a rules violation that

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Plaintiff’s bunkmate (McClelan) received as a result of being in possession of contraband,

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including but not limited to any statements made by McClelan during the hearing.

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13.

Captain J. Popovits will provide testimony regarding the various rules violations

that Plaintiff received.
14.

Lieutenant D. Henry will provide testimony regarding Plaintiff’s placement in

Administrative Segregation and eventual transfer due to the bulletin regarding Ringler.
15.

Chief Deputy Warden E. Arnold will provide testimony regarding the ICC

decision to transfer Plaintiff following the bulletin related to Ringler.
16.

CSR L. Puig will provide testimony regarding the approval to transfer Plaintiff to

Folsom State Prison.
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Captain T. Lee, or some other individual from the Office of Appeals, will testify

regarding inmate grievances submitted by Plaintiff.

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ATTACHMENT C: PLAINTIFF’S EXHIBIT LIST
ID

Description

Offered

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1083 Form (Property Inventory) dated 9/6/11

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Memorandum of Proper Evidence Procedures for
Wireless Communications Devices dated September
7, 2007.

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CDCR Form 22 – Documentation of incident sent to
c/o Williamson

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CDCR Form 22 – Documentation of incident sent to
floor officer Rothman

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Memorandum of Plaintiffs account of the 5/5/2012
search emailed to AW Young by Chaplain Boyle

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Letter to Council of American-Islamic Relations by
plaintiff outlining additional retaliation against
Muslim Inmates at Solano State Prison.

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CDCR Form 22 – Documenting threats by Ringler
sent to Lt. Bickham on 2/4/13

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3rd Level Appeal decision by Captain Van Leer dated
May 13, 2013.

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2nd Level Appeal decision by Gary Swarthout dated
August 12, 2013.

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CDCR 114 “Lock up” Order dated January 16, 2013.

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CDCR 128-B Officer Ringler’s memorandum to CSPSolano program Lieutenant dated January 17.

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CDCR Form 128G classification chrono dated
1/24/2013 signed by Chairperson Arnold and
Recorder Jackura.

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CDCR 128-B Notice of Transfer Consideration –
dated March 14, 2013.

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1st Level Appeal Decision dated August 5, 2013 of
CDCR 602 – Dated Received on July 31, 2013, Feb 6,
2013, March 12, 2013, April 18, 2013, and June 6,
2013. Submitted Feb 2, 2013.

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Admitted

ID

Description

Offered

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Rejection of Appeal of Transfer, dated January 23,
2014

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Form 602 - Appeal of Rules Violation report for
“creation of bulletins” on state computer

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Admitted

ATTACHMENT D: DEFENDANTS’ WITNESS LIST
ID

Description

Offered

A

Cell Search Receipt from November 13, 2012

B

Photocopy of cell phone confiscated on November 13,
2012

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Cell Search Receipt from December 5, 2012

D

Photocopy of cell phone and cord confiscated on
December 5, 2012

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Cell Search Receipt from December 5, 2012,
reflecting that a cell phone was taken from Plaintiff’s
bunkmate McClelan

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Photocopy of cell phone confiscated from McClelan
on December 5, 2012

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Memo from Ringler dated December 31, 2012

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Receipt for TV belonging to inmate Gordon

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Rules Violation Report with Log No. SD-12-11-0449

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Rules Violation Report with Log No. SD-12-12-0470

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Rules Violation Report with Log No. SD-12-12-0471

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Rules Violation Report with Log No. SD-12-12-0480

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Rules Violation Report with Log No. SD-13-01-0012

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Rules Violation Report with Log No. SD-13-01-0013

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Bulletin beginning with “ATTENTION!!!”

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128-B Chrono from Ringler dated January 17, 2013

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128-B Chrono from Henry dated March 20, 2013

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CDC-114 Administrative Segregation Placement
Notice

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128-G Classification Chrono dated March 27, 2013

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128-G Chrono dated April 10, 2013

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Admitted

ID

Description

Offered

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Appeal Logs reflecting inmate appeals submitted by
Plaintiff at the institutional level

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Appeal Log reflecting inmate appeals submitted by
Plaintiff to the Office of Appeals.

W

Plaintiff’s abstracts of judgment

X

Abstracts of judgment for any inmate witnesses

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Excerpts from Plaintiff’s Central File

Z

Records from Plaintiff’s prior court actions

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Admitted