Abeyta v. Santa Clara County Dept/Sheriff Dept. et al

Filing 14

ORDER SETTING TRIAL DATE AND REFERRING CASE FOR SETTLEMENT CONFERENCE; ORDER REFERRING CASE to Magistrate Judge Nandor Vadas for Settlement Jury Trial set for 7/26/2010 08:30 AM. Pretrial Conference set for 6/29/2010 02:00 PM.. Signed by Judge Claudia Wilken on 3/18/09. (Attachments: # 1 Exhibit List, # 2 Exhibit Tags)(scc, COURT STAFF) (Filed on 3/18/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE IS HEREBY GIVEN that a five day jury trial will commence on July 26, 2010, at 8:30 a.m. be held on June 29, 2010, at 2:00 p.m. A pretrial conference will Parties shall comply with Fact and expert Parties shall v. SANTA CLARA COUNTY DEPT. OF CORRECTIONS, Defendant. / JOSEPH A. ABEYTA, Plaintiff, No. C 07-04660 CW ORDER SETTING TRIAL DATE AND REFERRING CASE FOR SETTLEMENT CONFERENCE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

the attached Order for Pretrial Preparation.

discovery shall be completed by July 31, 2009.

disclose identities and reports of expert witnesses by July 1, 2009. Defendant shall file any motion for summary judgment or The motion shall be

other dispositive motion by August 31, 2009.

supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendant

is of the further opinion that this case cannot be resolved by summary judgment, Defendant shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the

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Court shall be promptly served on Plaintiff. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendant no later than thirty (30) days after the date on which Defendant's motion is filed. The

Ninth Circuit has held that the following notice should be given to pro se plaintiffs facing a summary judgment motion: The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the defendants], your case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that because he bears the

burden of proving his allegations in this case, he must be prepared 2

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to produce evidence in support of those allegations when he files his opposition to Defendant's dispositive motion. Such evidence

may include sworn declarations from himself and other witnesses to the incident, and copies of documents authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment

simply by repeating the allegations of his complaint. If Defendant wishes to file a reply brief, Defendant shall do so no later than fifteen (15) days after the date Plaintiff's opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the

Court so orders at a later date. Discovery may be taken in this action in accordance with the Federal Rules of Civil Procedure. Leave of the Court pursuant to

Rule 30(a)(2) is hereby granted to Defendant to depose Plaintiff and any other necessary witnesses confined in prison. All communications by Plaintiff with the Court must be served on Defendant's counsel by mailing a true copy of the document to Defendant or Defendant's counsel. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time

must be filed no later than fifteen (15) days prior to the deadline sought to be extended. The Northern District of California has established a Pro Se Prisoner Settlement Program. Certain prisoner civil rights cases 3

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may be referred to a magistrate judge for a settlement conference. The Court finds that a referral is in order and the case is hereby REFERRED to Magistrate Judge Vadas for a settlement conference. The conference shall take place within one-hundred twenty (120) days of the date of this Order, or as soon thereafter as is convenient to the magistrate judge's calendar. Magistrate Judge

Vadas shall coordinate a time and date for the conference with all interested parties and/or their representatives and, within ten (10) days after the conclusion of the conference, file with the Court a report regarding the conference. The Clerk shall provide a copy of this Order, and copies of documents from the court file that are not accessible electronically, to Magistrate Judge Vadas. IT IS SO ORDERED.

Dated: 3/18/09

CLAUDIA WILKEN United States District Judge

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ORDER FOR PRETRIAL PREPARATION (Prisoner Cases) PRETRIAL CONFERENCE Not less than 10 days prior to the pretrial conference, each party shall file the pretrial statement required by Civil L.R. 1610(b)(6). The pretrial conference statement shall contain the

following information: (1) The Action.

(A) Substance of the Action. A brief description of the substance of claims and defenses which remain to be decided. (B) Relief Prayed. A detailed statement of all the relief claimed, particularly itemizing all elements of damages claimed. (2) The Factual Basis of the Action.

(A) Undisputed Facts. A plain and concise statement of all relevant facts not reasonably disputed. (B) Disputed Factual Issues. A plain and concise statement of all disputed factual issues which remain to be decided. (C) Agreed Statement. A statement assessing whether all or part of the action may be presented upon an agreed statement of facts. (D) Stipulations. A statement of stipulations requested or proposed for pretrial or trial purposes. (3) Disputed Legal Issues. Without extended legal argument,

a concise statement of each disputed point of law concerning liability or relief. (4) Further Discovery or Motions. A statement of all remaining

discovery or motions. (5) Trial Alternatives and Options.

(A) Settlement Discussion. A statement summarizing the status of settlement negotiations and indicating whether further negotiations are likely to be productive. (B) Consent to Trial Before a Magistrate Judge. A statement whether the parties consent to a court or jury trial 5

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before a magistrate judge, with appeal directly to the Ninth Circuit. (C) Bifurcation, Separate Trial of Issues. A statement of whether bifurcation or a separate trial of specific issues is feasible and desired. (6) Miscellaneous. Any other subjects relevant to the trial of

the action, or material to its just, speedy and inexpensive determination. In addition, each party shall submit the following: a. Exhibit List and Objections. The exhibit list required

by Civil L.R. 16-10(b)(7) shall list each proposed exhibit by its number (see Civil L.R. 30-2(b)), description, and sponsoring witness, followed by blanks to accommodate the date on which it is marked for identification and the date on which it is admitted into evidence. No party shall be permitted to offer any exhibit in its case-in-chief that is not disclosed in its exhibit list without leave of the Court for good cause shown. Parties shall also deliver a set of premarked The exhibit markers shall each

exhibits to the Courtroom Deputy.

contain the name and number of the case, the number of the exhibit, and blanks to accommodate the date admitted and the Deputy Clerk's initials. Appropriate sample forms are attached. b. Trial briefs. Briefs on all significant disputed issues of law, including foreseeable procedural and evidentiary issues. c. Proposed Voir Dire. The attached voir dire

questionnaire will be given to the venire members, and copies of the responses will be made available to parties at the beginning of voir dire. Each party may submit a set of additional requested voir dire. d. Joint Proposed Jury Instructions. As applicable, jury

instructions §1.1A, §1.1C, §1.2 through §1.17, §1.19, §2.1 through 6

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§2.13,

§3.1

through

§3.3

from

the

Manual

of

Model

Civil

Jury

Instructions for the Ninth Circuit (2007 Edition) will be given absent objection. Parties shall each submit one set of additional proposed The instructions shall be ordered in a logical Authority for each

jury instructions.

sequence, together with a table of contents.

instruction shall be included as part of the submission. Whenever possible, parties shall deliver to the Courtroom Deputy a copy of their proposed jury instructions on a computer disk in WordPerfect or ASCII format. The disk label should include the name

of the parties, the case number and a description of the document. e. f. Trial only). Proposed Verdict Forms. Proposed Findings of Fact and Conclusions of Law (Court Whenever possible, parties shall deliver to the

Courtroom Deputy a copy of their proposed findings of fact and conclusions of law on a computer disk in WordPerfect or ASCII format. The disk label should include the name of the parties, the case number and a description of the document. g. Witness List. No party shall be permitted to call any

witness in its case-in-chief that is not disclosed in its pretrial statement without leave of the Court for good cause shown. Each party must arrange to subpoena and produce the witnesses they wish to call.

JURY SELECTION The Jury Commissioner will summon 20 to 25 prospective jurors. The Courtroom Deputy will select their names at random and seat them in the courtroom in the order in which their names are called. Voir dire will be asked of sufficient venire persons so that eight (or more for a lengthy trial) will remain after all peremptory 7

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challenges and an anticipated number of hardship dismissals and cause challenges have been made. The Court will then take cause challenges, and discuss hardship claims from the individual jurors, outside the presence of the venire. The Court will inform the parties which hardship claims and cause challenges will be granted, but will not announce those dismissals until the process is completed. Each party may then list in writing The parties will review each

up to three peremptory challenges.

other's lists and then submit them to the Courtroom Deputy. Then, from the list of jurors in numerical order, the Court will strike the persons with meritorious hardships, those excused for cause, and those challenged peremptorily, and call the first eight people in numerical sequence remaining. jury. All jurors remaining at the close of the case will deliberate. There are no alternates. /// /// Those people will be the

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SANCTIONS Failure to comply with this Order is cause for sanctions under Federal Rule of Civil Procedure 16(f).

IT IS SO ORDERED. ______________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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JUROR QUESTIONNAIRE Please fill out this form as completely as possible and print clearly. Since we want to make copies for the attorneys and the Court, do not write on the back of any page. If you need more room, continue at the bottom of the page. Thank you for your cooperation. 1. 2. 3. 4. 5. Your name: ________________________________________________ Your age: _________________________________________________ Your place of birth: ______________________________________ Do you rent or own your own home? _________________________ Your marital status: (circle one)
single married separated divorced widowed live with partner

6.

What is your occupation, and how long have you worked in it? (If you are retired, please describe your main occupation when you were working).

_______________________________________________________________ _______________________________________________________________ 7. Who is (or was) your employer?

_______________________________________________________________ 8. 9. How long have you worked for this employer? ______________ Please list the occupations of any adults with whom you live.

_______________________________________________________________ 10. If you have children, please list their ages and sex and, if they are employed, please give their occupations.

_______________________________________________________________ _______________________________________________________________ _______________________________________________________________

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11.

Please describe your educational background: Highest grade completed: _________________________________ College and/or vocational schools you have attended:

_______________________________________________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ Major areas of study:_____________________________________ 12. Have you ever served on a jury before? ________ times?________ If yes: State/County Court _______ Federal Court _______ How many

When? ____________________________________________________ Was it a civil or criminal case? _________________________ Did the jury(ies) reach a verdict? ___________________

(rev. 10/07)

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOSEPH A. ABEYTA, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-04660 CW CERTIFICATE OF SERVICE DEPT. OF

S A N T A CLARA COUNTY CORRECTIONS et al, Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 18, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Joseph Anthony Abeyta CHY429 Santa Clara City Correction Department 03026633 885 N. San Pedro Street San Jose, CA 95110 Dated: March 18, 2009 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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