1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE L. ARDDS, No. 2:20-cv-0133 TLN KJN P 12 Plaintiff, 13 v. DISCOVERY AND 14 KENNETH MARTIN, et al. SCHEDULING ORDER 15 Defendants. 16 17 Defendants V. Kieu, C. Lundgren, and J. Levin (f/k/a/ Bogacs) answered the second 18 amended complaint. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery 19 shall proceed in accordance with paragraphs 1-5 of this order. In addition, the court sets a 20 schedule for this litigation. 21 Should this matter proceed to trial the court will, by subsequent order, require the parties 22 to file pretrial statements. In addition to the matters required to be addressed in the pretrial 23 statement in accordance with Local Rule 281, plaintiff will be required to make a particularized 24 showing in the pretrial statement in order to obtain the attendance of witnesses at trial. Plaintiff is 25 advised that failure to comply with the procedures set forth below may result in the preclusion of 26 any and all witnesses named in the pretrial statement. 27 At the trial of this case, the plaintiff must be prepared to introduce evidence to prove each 28 of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 1 trial evidence: (1) exhibits; and (2) the testimony of witnesses. It is the plaintiff’s responsibility 2 to produce all of the evidence to prove the case, whether that evidence is in the form of exhibits 3 or witness testimony. If the plaintiff wants to call witnesses to testify, plaintiff must follow 4 certain procedures to ensure that the witnesses will be at the trial and available to testify. 5 I. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 6 Testify Voluntarily 7 An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot 8 come to court unless this court orders the warden or other custodian to permit the witness to be 9 transported to court. This court will not issue such an order unless it is satisfied that: 10 1. The prospective witness is willing to attend; 11 and 12 2. The prospective witness has actual knowledge of relevant facts. 13 With the pretrial statement, a party intending to introduce the testimony of incarcerated 14 witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for 15 a court order requiring that such witnesses be brought to court at the time of trial. The motion 16 must: 17 1. State the name, prisoner identification number, and address of each such 18 witness; and 19 2. Be accompanied by affidavits showing that each witness is willing to testify 20 and that each witness has actual knowledge of relevant facts. 21 The willingness of the prospective witness can be shown in one of two ways: 22 1. The party can swear by affidavit that the prospective witness has informed the 23 party that he or she is willing to testify voluntarily without being subpoenaed. The 24 party must state in the affidavit when and where the prospective witness informed 25 the party of this willingness; 26 Or 27 2. The party can serve and file an affidavit sworn to by the prospective witness, in 28 which the witness states that he or she is willing to testify without being 1 subpoenaed. 2 The prospective witness’ actual knowledge of relevant facts can be shown in one of two 3 ways: 4 1. The party can swear by affidavit that the prospective witness has actual 5 knowledge. However, this can be done only if the party has actual firsthand 6 knowledge that the prospective witness was an eyewitness or an ear-witness to the 7 relevant facts. For example, if an incident occurred in the plaintiff’s cell and, at 8 the time, the plaintiff saw that a cellmate was present and observed the incident, 9 the plaintiff may swear to the cellmate’s ability to testify. 10 Or 11 2. The party can serve and file an affidavit sworn to by the prospective witness in 12 which the witness describes the relevant facts to which the prospective witness 13 was an eye- or ear-witness. Whether the affidavit is made by the plaintiff or by the 14 prospective witness, it must be specific about what the incident was, when and 15 where it occurred, who was present, and how the prospective witness happened to 16 be in a position to see or to hear what occurred at the time it occurred. 17 The court will review and rule on the motion for attendance of incarcerated witnesses, 18 specifying which prospective witnesses must be brought to court. Subsequently, the court will 19 issue the order necessary to cause the witness’ custodian to bring the witness to court. 20 II. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 21 Testify Voluntarily 22 If a party seeks to obtain the attendance of incarcerated witnesses who refuse to testify 23 voluntarily, the party should submit with the pretrial statement a motion for the attendance of 24 such witnesses. Such motion should be in the form described above. In addition, the party must 25 indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily. 26 III. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 27 Testify Voluntarily 28 It is the responsibility of the party who has secured an unincarcerated witness’ voluntary 1 attendance to notify the witness of the time and date of trial. No action need be sought or 2 obtained from the court. 3 IV. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 4 Testify Voluntarily 5 If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, not 6 earlier than four weeks and not later than two weeks before trial, the party must prepare and 7 submit to the United States Marshal a subpoena for service by the Marshal upon the witness. 8 (Blank subpoena forms may be obtained from the Clerk of the Court). Also, the party seeking the 9 witness’ presence must tender an appropriate sum of money to the witness through the United 10 States Marshal. In the case of an unincarcerated witness, the appropriate sum of money is the 11 daily witness fee of $40.00 plus the witness’ travel expenses. 12 A subpoena will not be served by the United States Marshal upon an unincarcerated 13 witness unless the subpoena is accompanied by a money order made payable to the witness for 14 the full amount of the witness’ travel expenses plus the daily witness fee of $40.00. As noted 15 earlier, because no statute authorizes the use of public funds for these expenses in civil cases, the 16 tendering of witness fees and travel expenses is required even if the party was granted leave to 17 proceed in forma pauperis. 18 With respect to the filing of dispositive motions, the parties should keep in mind that the 19 purpose of law and motion is to narrow and refine the legal issues raised by the case, and to 20 dispose of by pretrial motion those issues that are susceptible to resolution without trial. To 21 accomplish that purpose, the parties need to identify and fully research the issues presented by the 22 case, and then examine those issues in light of the evidence gleaned through discovery. If it 23 appears after examining the legal issues and facts that an issue can be resolved by pretrial motion, 24 the parties are to file the appropriate motion by the law and motion cutoff set forth below. 25 All purely legal issues are to be resolved by timely pretrial motion. The parties are 26 reminded that motions in limine are procedural devices designed to address the admissibility of 27 evidence. The parties are cautioned that the court will look with disfavor upon substantive 28 motions presented in the guise of motions in limine at the time of trial. 1 Good cause appearing, IT IS HEREBY ORDERED that: 2 1.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE L. ARDDS, No. 2:20-cv-0133 TLN KJN P 12 Plaintiff, 13 v. DISCOVERY AND 14 KENNETH MARTIN, et al. SCHEDULING ORDER 15 Defendants. 16 17 Defendants V. Kieu, C. Lundgren, and J. Levin (f/k/a/ Bogacs) answered the second 18 amended complaint. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery 19 shall proceed in accordance with paragraphs 1-5 of this order. In addition, the court sets a 20 schedule for this litigation. 21 Should this matter proceed to trial the court will, by subsequent order, require the parties 22 to file pretrial statements. In addition to the matters required to be addressed in the pretrial 23 statement in accordance with Local Rule 281, plaintiff will be required to make a particularized 24 showing in the pretrial statement in order to obtain the attendance of witnesses at trial. Plaintiff is 25 advised that failure to comply with the procedures set forth below may result in the preclusion of 26 any and all witnesses named in the pretrial statement. 27 At the trial of this case, the plaintiff must be prepared to introduce evidence to prove each 28 of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 1 trial evidence: (1) exhibits; and (2) the testimony of witnesses. It is the plaintiff’s responsibility 2 to produce all of the evidence to prove the case, whether that evidence is in the form of exhibits 3 or witness testimony. If the plaintiff wants to call witnesses to testify, plaintiff must follow 4 certain procedures to ensure that the witnesses will be at the trial and available to testify. 5 I. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 6 Testify Voluntarily 7 An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot 8 come to court unless this court orders the warden or other custodian to permit the witness to be 9 transported to court. This court will not issue such an order unless it is satisfied that: 10 1. The prospective witness is willing to attend; 11 and 12 2. The prospective witness has actual knowledge of relevant facts. 13 With the pretrial statement, a party intending to introduce the testimony of incarcerated 14 witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for 15 a court order requiring that such witnesses be brought to court at the time of trial. The motion 16 must: 17 1. State the name, prisoner identification number, and address of each such 18 witness; and 19 2. Be accompanied by affidavits showing that each witness is willing to testify 20 and that each witness has actual knowledge of relevant facts. 21 The willingness of the prospective witness can be shown in one of two ways: 22 1. The party can swear by affidavit that the prospective witness has informed the 23 party that he or she is willing to testify voluntarily without being subpoenaed. The 24 party must state in the affidavit when and where the prospective witness informed 25 the party of this willingness; 26 Or 27 2. The party can serve and file an affidavit sworn to by the prospective witness, in 28 which the witness states that he or she is willing to testify without being 1 subpoenaed. 2 The prospective witness’ actual knowledge of relevant facts can be shown in one of two 3 ways: 4 1. The party can swear by affidavit that the prospective witness has actual 5 knowledge. However, this can be done only if the party has actual firsthand 6 knowledge that the prospective witness was an eyewitness or an ear-witness to the 7 relevant facts. For example, if an incident occurred in the plaintiff’s cell and, at 8 the time, the plaintiff saw that a cellmate was present and observed the incident, 9 the plaintiff may swear to the cellmate’s ability to testify. 10 Or 11 2. The party can serve and file an affidavit sworn to by the prospective witness in 12 which the witness describes the relevant facts to which the prospective witness 13 was an eye- or ear-witness. Whether the affidavit is made by the plaintiff or by the 14 prospective witness, it must be specific about what the incident was, when and 15 where it occurred, who was present, and how the prospective witness happened to 16 be in a position to see or to hear what occurred at the time it occurred. 17 The court will review and rule on the motion for attendance of incarcerated witnesses, 18 specifying which prospective witnesses must be brought to court. Subsequently, the court will 19 issue the order necessary to cause the witness’ custodian to bring the witness to court. 20 II. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 21 Testify Voluntarily 22 If a party seeks to obtain the attendance of incarcerated witnesses who refuse to testify 23 voluntarily, the party should submit with the pretrial statement a motion for the attendance of 24 such witnesses. Such motion should be in the form described above. In addition, the party must 25 indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily. 26 III. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 27 Testify Voluntarily 28 It is the responsibility of the party who has secured an unincarcerated witness’ voluntary 1 attendance to notify the witness of the time and date of trial. No action need be sought or 2 obtained from the court. 3 IV. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 4 Testify Voluntarily 5 If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, not 6 earlier than four weeks and not later than two weeks before trial, the party must prepare and 7 submit to the United States Marshal a subpoena for service by the Marshal upon the witness. 8 (Blank subpoena forms may be obtained from the Clerk of the Court). Also, the party seeking the 9 witness’ presence must tender an appropriate sum of money to the witness through the United 10 States Marshal. In the case of an unincarcerated witness, the appropriate sum of money is the 11 daily witness fee of $40.00 plus the witness’ travel expenses. 12 A subpoena will not be served by the United States Marshal upon an unincarcerated 13 witness unless the subpoena is accompanied by a money order made payable to the witness for 14 the full amount of the witness’ travel expenses plus the daily witness fee of $40.00. As noted 15 earlier, because no statute authorizes the use of public funds for these expenses in civil cases, the 16 tendering of witness fees and travel expenses is required even if the party was granted leave to 17 proceed in forma pauperis. 18 With respect to the filing of dispositive motions, the parties should keep in mind that the 19 purpose of law and motion is to narrow and refine the legal issues raised by the case, and to 20 dispose of by pretrial motion those issues that are susceptible to resolution without trial. To 21 accomplish that purpose, the parties need to identify and fully research the issues presented by the 22 case, and then examine those issues in light of the evidence gleaned through discovery. If it 23 appears after examining the legal issues and facts that an issue can be resolved by pretrial motion, 24 the parties are to file the appropriate motion by the law and motion cutoff set forth below. 25 All purely legal issues are to be resolved by timely pretrial motion. The parties are 26 reminded that motions in limine are procedural devices designed to address the admissibility of 27 evidence. The parties are cautioned that the court will look with disfavor upon substantive 28 motions presented in the guise of motions in limine at the time of trial. 1 Good cause appearing, IT IS HEREBY ORDERED that: 2 1. Discovery requests shall be served by the party seeking the discovery on all parties to 3 the action.1 Discovery requests shall not be filed with the court except when required by Local 4 Rules 250.1, 250.2, 250.3 and 250.4. 5 2. Responses to written discovery requests shall be due forty-five days after the request is 6 served. 7 3. The parties are cautioned that filing of discovery requests or responses, except as 8 required by rule of court, may result in an order of sanctions, including, but not limited to, a 9 recommendation that the action be dismissed or the answer stricken. 10 4. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), defendants may depose, either 11 in person or by videoconference, plaintiff and any other witness confined in a prison or jail upon 12 condition that, at least fourteen days before such a deposition, defendants serve all parties with 13 the notice required by Fed. R. Civ. P. 30(b)(1). Pursuant to Rule 30(b)(4), the parties may take 14 any deposition by video conference, relieving the court reporter of the requirement to be in the 15 physical presence of the witness under Rule 28(a)(1) during that deposition. 16 5. If disputes arise about the parties’ obligations to respond to requests for discovery, the 17 parties shall comply with all pertinent rules including Rules 5, 7, 11, 26, and 37 of the Federal 18 Rules of Civil Procedure and Rules 134, 135, 130, 131, 110, 142, and 230(l) of the Local Rules of 19 Practice for the United States District Court, Eastern District of California; unless otherwise 20 ordered, Local Rule 251 shall not apply. Filing of a discovery motion that does not comply with 21 all applicable rules may result in imposition of sanctions, including but not limited to denial of the 22 motion. 23 6. The parties may conduct discovery until September 28, 2023. Any motions necessary 24 to compel discovery shall be filed by that date. All requests for discovery pursuant to Federal 25 Rules of Civil Procedure 31, 33, 34 or 36 shall be served not later than sixty days prior to that 26 date. 27 1 If an attorney has filed a document with the court on behalf of any defendant, then plaintiff must 28 serve documents on that attorney and not on the defendant. See Fed. R. Civ. P. 5(b). 1 7. All pretrial motions, except motions to compel discovery, shall be filed on or before 2 December 28, 2023. Unless otherwise ordered, all motions to dismiss, motions for summary 3 judgment, motions concerning discovery, motions pursuant to Federal Rules of Civil Procedure 7, 4 11, 12, 15, 41, 55, 56, 59 and 60, and Local Rule 110, shall be briefed pursuant to Local Rule 5 230(l). Failure to timely oppose such a motion may be deemed a waiver of opposition to the 6 motion. L.R. 230(l). Unsigned affidavits or declarations will be stricken, and affidavits or 7 declarations not signed under penalty of perjury have no evidentiary value. Opposition to all 8 other motions need be filed only as directed by the court. 9 8. If plaintiff is released from prison while this case is pending, any party may request 10 application of the other provisions of Local Rule 230 in lieu of Local Rule 230(l). Until such a 11 motion is granted, Local Rule 230(l) will govern all motions described in paragraph 7 above 12 regardless of plaintiff’s custodial status. L.R. 102(d). 13 9. Each party proceeding without counsel shall keep the court informed of a current 14 address at all times while the action is pending. Any change of address must be reported 15 promptly to the court in a separate document captioned for this case and entitled “Notice of 16 Change of Address.” A notice of change of address must be properly served on other parties. 17 Service of documents at the address of record for a party is fully effective. L.R. 182(f). A party’s 18 failure to inform the court of a change of address may result in the imposition of sanctions 19 including dismissal of the action. 20 10. Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and 21 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the court hereby informs plaintiff of the 22 following requirements for opposing a motion for summary judgment pursuant to Federal Rule of 23 Civil Procedure 56. Such a motion is a request for an order for judgment in favor of the 24 defendant without trial. A defendant’s motion for summary judgment will set forth the facts that 25 the defendant contends are not reasonably subject to dispute and that entitle the defendant to 26 judgment. To oppose a motion for summary judgment, plaintiff must show proof of his or her 27 claims. Plaintiff may do this in one or more of the following ways. Plaintiff may rely on 28 plaintiff’s statements made under penalty of perjury in the complaint if the complaint shows that 1 plaintiff has personal knowledge of the matters stated and plaintiff specifies those parts of the 2 complaint on which plaintiff relies. Plaintiff may serve and file one or more affidavits or 3 declarations setting forth the facts that plaintiff believes prove plaintiff’s claims; the person who 4 signs an affidavit or declaration must have personal knowledge of the facts stated. Plaintiff may 5 rely on written records, but plaintiff must prove that the records are what plaintiff asserts they are. 6 Plaintiff may rely on all or any part of the transcript of one or more depositions, answers to 7 interrogatories, or admissions obtained in this proceeding. If plaintiff fails to contradict the 8 defendant’s evidence with counter-affidavits or other admissible evidence, the court may accept 9 defendant’s evidence as true and grant the motion. If there is some good reason why such facts 10 are not available to plaintiff when required to oppose a motion for summary judgment, the court 11 will consider a request to postpone consideration of the defendant’s motion. Fed. R. Civ. P. 12 56(d). If plaintiff does not serve and file a written opposition to the motion, or a request to 13 postpone consideration of the motion, the court may consider the failure to act as a waiver of 14 opposition to the defendant’s motion. L.R. 230(l). If the court grants the motion for summary 15 judgment, whether opposed or unopposed, judgment will be entered for the defendant without a 16 trial and the case will be closed as to that defendant. 17 11. If defendant moves for summary judgment, defendant must contemporaneously serve 18 with the motion, but in a separate document, a copy of the attached Rand Notice. See Woods v. 19 Carey, 684 F.3d 934, 935 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). 20 Failure to do so may constitute grounds for denial of the motion. 21 12. On April 3, 2014, the United States Court of Appeals for the Ninth Circuit overruled 22 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), with respect to the proper procedural 23 device for raising the issue of administrative exhaustion. Albino v. Baca, 747 F.3d 1162, 1166 24 (9th Cir. 2014) (en banc). Following the decision in Albino, a defendant may raise the issue of 25 exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure 26 to exhaust is clear on the face of the amended complaint, or (2) a motion for summary judgment. 27 Albino, 747 F.3d at 1166, 1169-70 (quotation marks omitted). An unenumerated Rule 12(b) 28 motion is no longer the proper procedural device for raising the issue of exhaustion. Albino, 747 1 | F.3d at 1168. The court encourages defendant to bring motions raising exhaustion issues early in 2 || the case. Id. at 1170-71. 3 13. Unsigned affidavits or declarations will be stricken, and affidavits or declarations not 4 || signed under penalty of perjury have no evidentiary value. 5 14. Pretrial conference and trial dates will be set, as appropriate, following adjudication 6 || of any dispositive motion, or the expiration of time for filing such a motion. 7 15. The Clerk of the Court shall serve on plaintiff a copy of the Local Rules of Court. 8 16. The Clerk of the Court is directed to send the parties the court’s notice regarding 9 || expedited trial setting procedures upon consent to magistrate judge jurisdiction. 10 17. The failure of any party to comply with this order, the Federal Rules of Civil 11 || Procedure, or the Local Rules of Court, may result in the imposition of sanctions including, but 12 | not limited to, dismissal of the action or entry of default. See Fed. R. Civ. P. 41(b). 13 || Dated: May 22, 2023 i Aectl Aharon 15 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28
1 Rand Notice to Plaintiff 2 This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely and adequate notice 3 of what is required” to oppose a motion for summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); 4 Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). The court requires that you be provided with this notice 5 regarding the requirements for opposing a motion for summary judgment under Rule 56 of the Federal Rules of Civil 6 Procedure. 7 When a defendant moves for summary judgment, the defendant is requesting that the court grant judgment 8 in defendant’s favor without a trial. If there is no real dispute about any fact that would affect the result of your case, 9 the defendant who asked for summary judgment is entitled to judgment as a matter of law, which will end your case 10 against that defendant. A motion for summary judgment will set forth the facts that the defendant asserts are not 11 reasonably subject to dispute and that entitle the defendant to judgment. 12 To oppose a motion for summary judgment, you must show proof of your claims.2 To do this, you may 13 refer to specific statements made in your complaint if you signed your complaint under penalty of perjury and if your 14 complaint shows that you have personal knowledge of the matters stated. You may also submit declarations setting 15 forth the facts that you believe prove your claims, as long as the person who signs the declaration has personal 16 knowledge of the facts stated. You may also submit all or part of deposition transcripts, answers to interrogatories, 17 admissions, and other authenticated documents. For each of the facts listed in the defendant’s Statement of 18 Undisputed Facts, you must admit the facts that are undisputed, and deny the facts that are disputed. If you deny a 19 fact, you must cite to the proof that you rely on to support your denial. See L.R. 260(b). If you fail to contradict the 20 defendant’s evidence with your own evidence, the court may accept the defendant’s evidence as the truth and grant 21 the motion. 22 The court will consider a request to postpone consideration of the defendant’s motion if you submit a 23 declaration showing that for a specific reason you cannot present such facts in your opposition. If you do not respond 24 to the motion, the court may consider your failure to act as a waiver of your opposition. See L.R. 230(l). 25 If the court grants the defendant’s motion, whether opposed or unopposed, judgment will be entered for that 26 defendant without a trial and the case will be closed as to that defendant.
27 2 If the motion for summary judgment concerns the exhaustion of administrative remedies, you must submit proof of specific facts regarding the exhaustion of administrative remedies. See Stratton v. Buck, 697 F.3d 1004, 1008 (9th 28 Cir. 2012); Albino v. Baca, 747 F.3d 1162 (9th Cir. April 3, 2014).