Larry M. Wisenbaker VS Craig Farwell, et al.

Filing 130

ORDER. IT IS HEREBY ORDERED that plaintiff's 129 proposed pretrial order is GRANTED in-part and DENIED in-part in accordance with this order. FURTHER ORDERED, defendant's separately filed 128 pretrial order is GRANTED in-part and DENI ED in-part in accordance with this order. FURTHER ORDERED, in accordance with Local Rule 16-3, the parties shall file and submit a proposed pretrial order consistent with this order within thirty (30) days. Signed by Judge Larry R. Hicks on 7/6/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LARRY M. WISENBAKER,

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Plaintiff,

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v.

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CRAIG FARWELL; et al.,

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Defendants.

3:03-CV-0500-LRH-VPC
ORDER

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Before the court are plaintiff Larry M. Wisenbaker’s (“Wisenbaker”) proposed pretrial order

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(Doc. #1291) and defendants Jackie Crawford, Craig Farwell, and the Nevada Department of

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Corrections (“NDOC”) (collectively “defendants”) separately filed proposed pretrial order

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(Doc. #128).

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The parties have filed separate pretrial orders because they dispute the remaining issues for

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trial on Wisenbaker’s prisoner civil rights complaint after the Ninth Circuit Court of Appeals

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vacated in-part this court’s order granting summary judgment in favor of defendants (Doc. #125).2

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Wisenbaker contends that he still has valid claims for trial relating to: (1) defendants’ policies and

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Refers to the court’s docketing number.

The parties are not contesting the remaining portions of the proposed pretrial orders related to the
parties proposed witnesses or exhibits. Accordingly, the court shall grant the proposed pretrial orders as to these
issues and the court’s order shall only address the dispute about the remaining issues for trial.

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procedures concerning inmate placement; (2) deliberate indifference for defendants’ failure to place

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him in protective custody; (3) inadequate training and supervision of correctional officers in the use

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inmate call buttons; and (4) deliberate indifference for the treatment of injuries he sustained during

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an attack by another inmate. See Doc. #129. In opposition, defendants contend that the only issues

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remaining for trial are: (1) whether defendants’ had knowledge that another inmate would attack

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Wisenbaker; and (2) failed to act upon that knowledge in protecting Wisenbaker from harm. See

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Doc. #128.

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The court has reviewed the documents and pleadings on file in this matter and finds that the
only remaining issue for trial is a deliberate indifference claim related to defendants’ failure to

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properly train or supervise correctional officers in the use and monitoring of the prison’s intercom

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system. In its order vacating summary judgment, the Ninth Circuit concluded that this court erred in

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“concluding that Wisenbaker presented no evidence that the defendants failed to properly supervise

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or train correctional officers. Wisenbaker presented evidence that there were no procedures or

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training on how to monitor or respond to the use of the prison’s intercom system, creating a triable

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issue concerning whether the defendants properly supervised or trained officers.” Doc. #125. On

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that basis alone, the Ninth Circuit remanded this action for the sole purpose of determining “in the

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first instance whether the failure to train amounted to deliberate indifference.” Id. Thus, based on

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the sole issue remanded back to this court from the Ninth Circuit, the court finds that Wisenbaker

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only has a single claim for deliberate indifference remaining in this action related to defendants’

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failure to train or supervise correctional officers in the use of the prison intercom system. All other

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issues identified by the parties for trial in the proposed pretrial orders are not before the court.

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Accordingly, the court shall deny the parties’ proposed pretrial orders in so far as they are

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inconsistent with the court’s finding of the remaining issue for trial.

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IT IS THEREFORE ORDERED that plaintiff’s proposed pretrial order (Doc. #129) is
GRANTED in-part and DENIED in-part in accordance with this order.
IT IS FURTHER ORDERED that defendant’s separately filed pretrial order (Doc. #128) is
GRANTED in-part and DENIED in-part in accordance with this order.
IT IS FURTHER ORDERED that, in accordance with Local Rule 16-3, the parties shall file
and submit a proposed pretrial order consistent with this order within thirty (30) days.

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IT IS SO ORDERED.

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DATED this 6th day of July, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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