1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT HACKWORTH, JR, Case No.: 1:19-cv-01362-KES-CDB (PC) 12 Plaintiff, AMENDED SECOND SCHEDULING 13 v. ORDER
14 E. AREVALOS, et al., ORDER SETTING PRETRIAL CONFERENCE AND JURY TRIAL AND 15 Defendants. ASSOCIATED DEADLINES
16 Pretrial Conference: 7/8/2024 at 10:30 a.m. 17 Jury Trial: 10/16/2024 at 8:30 a.m. 18
19 20 Plaintiff Robert Hackworth, Jr., is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action filed under 42 U.S.C. § 1983. This action proceeds on 22 Plaintiff’s constitutional claims against Defendant Arevalos. (Doc. 89.) 23 I. INTRODUCTION 24 On August 15, 2023, the undersigned conducted a settlement conference. (Doc. 99.) 25 Plaintiff appeared without an attorney, and Deputy Attorney General Matthew Ross Wilson 26 appeared for Defendant E. Arevalos. The case did not settle. 27 On August 17, 2023, the Court issued its Second Scheduling Order, setting this matter for a pretrial conference and jury trial before then-assigned District Judge Ana de Alba. (Doc. 100.) 1 On December 1, 2023, Chief Judge Kimberly J. Mueller issued an Order of Temporary 2 Reassignment to No District Court Judge (NODJ), due to the elevation of Judge de Alba to the 3 Ninth Circuit Court of Appeals. (Doc. 109.) 4 On March 5, 2024, Plaintiff filed a pretrial statement. (Doc. 111.) 5 The following day, Judge Mueller issued a minute order vacating the previously set 6 pretrial conference and jury trial and related deadlines to be reset at a later date. (Doc. 112.)1 7 On March 14, 2024, Judge Mueller issued an Order of Reassignment, reassigning this 8 action to District Judge Kirk E. Sherriff. (Doc. 113.) 9 Plaintiff filed an amended pretrial statement on March 15, 2024. (Doc. 114.) 10 On March 28, 2024, the Court issued its Order Directing Parties to Meet and Confer 11 Regarding Resetting of Pretrial Conference and Trial Dates and to Submit a Proposed Stipulation 12 Within Twenty-One (21) Days. (Doc. 115.) The parties were provided with potential dates for a 13 pretrial conference and jury trial before Judge Sherriff. (Id. at 2-3.) 14 On April 17, 2024, the parties filed a Stipulation Regarding Pretrial Conference and Trial 15 Dates. (Doc. 116.) Specifically, the parties indicated availability for a pretrial conference on June 16 10 or 24, 2024, and July 8 or 15, 2024, as well as availability for jury trial the weeks of October 17 14 and 28, 2024. (Id. at 1.) Plaintiff indicated a desire for a further settlement conference and 18 Defendants indicated their previous settlement position was unchanged. (Id. at 2.) 19 Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the Court now sets a 20 further schedule for this litigation. 21 II. PRETRIAL CONFERENCE AND PROCEDURES 22 A pretrial conference is set for July 8, 2024, at 10:30 a.m.,2 before District Judge Kirk E. 23 Sherriff. The pretrial conference will be held in Courtroom 6 on the 7th Floor at the United 24 States District Court for the Eastern District of California in Fresno. The Court will issue a writ 25
26 1 A review of the docket for this action reveals Plaintiff was not served a copy of the minute order.
27 2 The parties were originally advised that Judge Sherriff held pretrial conferences at 1:30 p.m. However, Judge Sherriff has since modified his calendaring preferences and pretrial conferences are now heard at 10:30 a.m. 1 of habeas corpus ad testificandum to allow for Plaintiff’s attendance, as appropriate. 2 Plaintiff shall file a pretrial statement that complies with Local Rule 281 on or before 3 June 10, 2024. Defendant shall file a pretrial statement on or before June 17, 2024. A copy of 4 Defendant’s statement shall also be emailed in Word format to KESorders@caed.uscourts.gov. 5 The parties are advised that failure to file a pretrial statement as required by this Order may 6 result in the imposition of appropriate sanctions, which may include dismissal of the action or 7 entry of default. 8 In addition to the matters already required to be addressed in the pretrial statement in 9 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 10 order to obtain the attendance of witnesses. The procedures, requirements, and deadlines for 11 making such a showing are outlined in detail below. Plaintiff is advised that failure to comply 12 with the procedures set forth below may result in the preclusion of any and all witnesses named 13 in his pretrial statement. 14 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 15 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 16 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 17 produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or 18 witness testimony. If Plaintiff wants to call witnesses to testify, he must follow certain 19 procedures to ensure that the witnesses will be at the trial and available to testify. 20 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 21 Testify Voluntarily 22 An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot 23 come to court unless the Court orders the warden or other custodian to permit the witness to be 24 transported to court. The Court will not issue such an order unless it is satisfied that the 25 prospective witness has actual knowledge of relevant facts. 26 A party intending to introduce the testimony of incarcerated witnesses who have agreed 27 voluntarily to attend the trial must serve and file a written motion for a court order requiring that 1 address, and prison identification number of each such witness; and (2) be accompanied by 2 declarations showing that each witness is willing to testify and that each witness has actual 3 knowledge of relevant facts. The motion should be entitled “Motion for Attendance of 4 Incarcerated Witnesses.” 5 The willingness of the prospective witness can be shown in one of two ways: (1) the 6 party himself can swear by declaration under penalty of perjury that the prospective witness has 7 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 8 which declaration the party must state when and where the prospective witness informed the 9 party of this willingness; or (2) the party can serve and file a declaration, signed under penalty 10 of perjury by the prospective witness, in which the witness states that he or she is willing to 11 testify without being subpoenaed. 12 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 13 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 14 eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell 15 and, at the time, Plaintiff saw that a cellmate was present and observed the incident), the party 16 himself can swear by declaration under penalty of perjury that the prospective witness has 17 actual knowledge; or (2) the party can serve and file a declaration signed under penalty of 18 perjury by the prospective witness in which the witness describes the relevant facts to which the 19 prospective witness was an eye or ear witness. Whether the declaration is made by the party or 20 by the prospective witness, it must be specific about the incident, when and where it occurred, 21 who was present, and how the prospective witness happened to be in a position to see or to hear 22 what occurred at the time it occurred. 23 2.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT HACKWORTH, JR, Case No.: 1:19-cv-01362-KES-CDB (PC) 12 Plaintiff, AMENDED SECOND SCHEDULING 13 v. ORDER
14 E. AREVALOS, et al., ORDER SETTING PRETRIAL CONFERENCE AND JURY TRIAL AND 15 Defendants. ASSOCIATED DEADLINES
16 Pretrial Conference: 7/8/2024 at 10:30 a.m. 17 Jury Trial: 10/16/2024 at 8:30 a.m. 18
19 20 Plaintiff Robert Hackworth, Jr., is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action filed under 42 U.S.C. § 1983. This action proceeds on 22 Plaintiff’s constitutional claims against Defendant Arevalos. (Doc. 89.) 23 I. INTRODUCTION 24 On August 15, 2023, the undersigned conducted a settlement conference. (Doc. 99.) 25 Plaintiff appeared without an attorney, and Deputy Attorney General Matthew Ross Wilson 26 appeared for Defendant E. Arevalos. The case did not settle. 27 On August 17, 2023, the Court issued its Second Scheduling Order, setting this matter for a pretrial conference and jury trial before then-assigned District Judge Ana de Alba. (Doc. 100.) 1 On December 1, 2023, Chief Judge Kimberly J. Mueller issued an Order of Temporary 2 Reassignment to No District Court Judge (NODJ), due to the elevation of Judge de Alba to the 3 Ninth Circuit Court of Appeals. (Doc. 109.) 4 On March 5, 2024, Plaintiff filed a pretrial statement. (Doc. 111.) 5 The following day, Judge Mueller issued a minute order vacating the previously set 6 pretrial conference and jury trial and related deadlines to be reset at a later date. (Doc. 112.)1 7 On March 14, 2024, Judge Mueller issued an Order of Reassignment, reassigning this 8 action to District Judge Kirk E. Sherriff. (Doc. 113.) 9 Plaintiff filed an amended pretrial statement on March 15, 2024. (Doc. 114.) 10 On March 28, 2024, the Court issued its Order Directing Parties to Meet and Confer 11 Regarding Resetting of Pretrial Conference and Trial Dates and to Submit a Proposed Stipulation 12 Within Twenty-One (21) Days. (Doc. 115.) The parties were provided with potential dates for a 13 pretrial conference and jury trial before Judge Sherriff. (Id. at 2-3.) 14 On April 17, 2024, the parties filed a Stipulation Regarding Pretrial Conference and Trial 15 Dates. (Doc. 116.) Specifically, the parties indicated availability for a pretrial conference on June 16 10 or 24, 2024, and July 8 or 15, 2024, as well as availability for jury trial the weeks of October 17 14 and 28, 2024. (Id. at 1.) Plaintiff indicated a desire for a further settlement conference and 18 Defendants indicated their previous settlement position was unchanged. (Id. at 2.) 19 Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, the Court now sets a 20 further schedule for this litigation. 21 II. PRETRIAL CONFERENCE AND PROCEDURES 22 A pretrial conference is set for July 8, 2024, at 10:30 a.m.,2 before District Judge Kirk E. 23 Sherriff. The pretrial conference will be held in Courtroom 6 on the 7th Floor at the United 24 States District Court for the Eastern District of California in Fresno. The Court will issue a writ 25
26 1 A review of the docket for this action reveals Plaintiff was not served a copy of the minute order.
27 2 The parties were originally advised that Judge Sherriff held pretrial conferences at 1:30 p.m. However, Judge Sherriff has since modified his calendaring preferences and pretrial conferences are now heard at 10:30 a.m. 1 of habeas corpus ad testificandum to allow for Plaintiff’s attendance, as appropriate. 2 Plaintiff shall file a pretrial statement that complies with Local Rule 281 on or before 3 June 10, 2024. Defendant shall file a pretrial statement on or before June 17, 2024. A copy of 4 Defendant’s statement shall also be emailed in Word format to KESorders@caed.uscourts.gov. 5 The parties are advised that failure to file a pretrial statement as required by this Order may 6 result in the imposition of appropriate sanctions, which may include dismissal of the action or 7 entry of default. 8 In addition to the matters already required to be addressed in the pretrial statement in 9 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 10 order to obtain the attendance of witnesses. The procedures, requirements, and deadlines for 11 making such a showing are outlined in detail below. Plaintiff is advised that failure to comply 12 with the procedures set forth below may result in the preclusion of any and all witnesses named 13 in his pretrial statement. 14 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 15 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 16 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 17 produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or 18 witness testimony. If Plaintiff wants to call witnesses to testify, he must follow certain 19 procedures to ensure that the witnesses will be at the trial and available to testify. 20 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 21 Testify Voluntarily 22 An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot 23 come to court unless the Court orders the warden or other custodian to permit the witness to be 24 transported to court. The Court will not issue such an order unless it is satisfied that the 25 prospective witness has actual knowledge of relevant facts. 26 A party intending to introduce the testimony of incarcerated witnesses who have agreed 27 voluntarily to attend the trial must serve and file a written motion for a court order requiring that 1 address, and prison identification number of each such witness; and (2) be accompanied by 2 declarations showing that each witness is willing to testify and that each witness has actual 3 knowledge of relevant facts. The motion should be entitled “Motion for Attendance of 4 Incarcerated Witnesses.” 5 The willingness of the prospective witness can be shown in one of two ways: (1) the 6 party himself can swear by declaration under penalty of perjury that the prospective witness has 7 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 8 which declaration the party must state when and where the prospective witness informed the 9 party of this willingness; or (2) the party can serve and file a declaration, signed under penalty 10 of perjury by the prospective witness, in which the witness states that he or she is willing to 11 testify without being subpoenaed. 12 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 13 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 14 eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell 15 and, at the time, Plaintiff saw that a cellmate was present and observed the incident), the party 16 himself can swear by declaration under penalty of perjury that the prospective witness has 17 actual knowledge; or (2) the party can serve and file a declaration signed under penalty of 18 perjury by the prospective witness in which the witness describes the relevant facts to which the 19 prospective witness was an eye or ear witness. Whether the declaration is made by the party or 20 by the prospective witness, it must be specific about the incident, when and where it occurred, 21 who was present, and how the prospective witness happened to be in a position to see or to hear 22 what occurred at the time it occurred. 23 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 24 Testify Voluntarily 25 If a party seeks to obtain the attendance of incarcerated witnesses who refuse to testify 26 voluntarily, the party should serve and file a written motion for a court order requiring that such 27 witnesses be brought to court at the time of trial. Such motion should be in the form described 1 willing to testify voluntarily. 2 The Court will review and rule on the motion(s) for attendance of incarcerated 3 witnesses, specifying which prospective witnesses must be brought to court. Subsequently, the 4 Court will issue the order necessary to cause the witness’s custodian(s) to bring the witness to 5 court. 6 Motions for the attendance of incarcerated witnesses, if any, must be filed as stand-alone 7 filings on or before May 27, 2024. Oppositions, if any, must be filed on or before June 10, 8 2024. 9 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 10 Testify Voluntarily 11 It is the responsibility of the party who has secured an unincarcerated witness’s 12 voluntary attendance to notify the witness of the time and date of trial. No action need be sought 13 or obtained from the Court. 14 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse 15 to Testify Voluntarily 16 If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, 17 the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the party seeking 18 the witness’s presence must tender an appropriate sum of money for the witness. Id. In the case 19 of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 20 plus the witness’s travel expenses. 28 U.S.C. § 1821. 21 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 22 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 23 location of each unincarcerated witness. The Court will calculate the travel expense for each 24 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each 25 witness, submit a money order made payable to the witness for the full amount of the witness’s 26 travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 27 unincarcerated witness by the United States Marshal unless the money order is tendered to the 1 the tendering of witness fees and travel expenses is required even if the party was granted leave 2 to proceed in forma pauperis. 3 If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse to 4 testify voluntarily, Plaintiff must submit the money orders to the Court no later than June 10, 5 2024. In order to ensure timely submission of the money orders, Plaintiff must notify the Court 6 of the names and locations of his witnesses, in compliance with step one, on or before May 27, 7 2024. 8 The parties are advised that failure to file pretrial statements as required by this order 9 may result in the imposition of appropriate sanctions, which may include dismissal of the action 10 or entry of default. 11 5. Motions in Limine 12 Any party may file a motion in limine, which is a procedural mechanism to limit in 13 advance testimony or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 14 1111 (9th Cir. 2009) (quotation marks omitted). In the case of a jury trial, the Court’s ruling 15 gives Plaintiff and Defendant’s counsel advance notice of the scope of certain evidence so that 16 admissibility is settled before attempted use of the evidence before the jury. Id. at 1111–12 17 (quotation marks omitted). 18 Any motions in limine must be served and filed with the Court by September 4, 2024. 19 Any motion in limine must clearly identify the nature of the evidence that the moving party 20 seeks to prohibit the other side from offering at trial. Any opposition to a motion in limine must 21 be served on the other party and filed with the Court by September 18, 2024. No reply briefs 22 shall be submitted by the parties. 23 An order may be issued prior to trial resolving these motions. If the Court finds a 24 hearing necessary or beneficial, it will set the matter for a hearing as appropriate. 25 Whether or not a party files a motion in limine, that party may still object to the 26 introduction of evidence during the trial. 27 // 1 III. TRIAL DATE 2 This matter has been set for a jury trial before District Judge Kirk E. Sherriff on 3 October 16, 2024, at 8:30 a.m., in Courtroom 6 on the 7th Floor.3 4 IV. EFFECT OF THIS ORDER 5 Any party unable to comply with the dates outlined in this order shall immediately file 6 an appropriate motion or stipulation identifying the requested modification(s). 7 The dates set in this order are firm and will not be modified absent a showing of good 8 cause, even if a stipulation to modify is filed. Due to the impacted nature of the civil case 9 docket, this Court disfavors requests to modify established dates. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. This matter is set for a pretrial conference before the Honorable Kirk E. Sherriff 12 on July 8, 2024, at 10:30 a.m., in Courtroom 6 on the 7th Floor in Fresno; 13 2. This matter is set for jury trial before the Honorable Kirk E. Sherriff on October 14 16, 2024, at 8:30 a.m., in Courtroom 6 on the 7th Floor in Fresno; 15 3. Plaintiff shall serve and file a pretrial statement as described in this order on or 16 before June 10, 2024; 17 4. Defendant shall serve and file a pretrial statement as described in this order on or 18 before June 17, 2024; 19 5. In addition to electronically filing a pretrial statement, Defendant shall email the 20 pretrial statement to: KESorders@caed.uscourts.gov; 21 6. If a party intends to call incarcerated witnesses at time of trial, the party shall 22 serve and file a motion for attendance of incarcerated witnesses as described in 23 this order on or before May 27, 2024; 24 7. The opposition to the motion for the attendance of incarcerated witnesses, if any, 25 shall be filed on or before June 10, 2024; 26 8. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who 27 3 Because October 14, 2024, is a federal holiday, pursuant to Judge Sherriff’s Standing Order, trial will commence on the Wednesday following a Monday federal holiday. 1 refuse to testify voluntarily, Plaintiff must notify the Court of their names and 2 locations on or before June 10, 2024, and Plaintiff must submit the money 3 orders, as described in subsection 4 of this Order, to the Court on or before May 4 27, 2024. 5 9. Motions in limine, if any, shall be filed on or before September 4, 2024; 6 10. Oppositions to motions in limine, if any, shall be filed on or before September 7 18, 2024; and 8 11. The Clerk of the Court is directed to modify the docket in this action to reflect 9 that Defendants B. Gamboa and M. Wright were terminated from this action on 10 August 3, 2020, as Plaintiff's second amended complaint no longer named these 11 individuals as defendants in this action (see Doc. 20; see also Docs. 26, 50), 12 pursuant to Rule 10 of the Federal Rules of Civil Procedure and Lacey v. 13 Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012); and 14 12. The Clerk of Court is also directed to send Plaintiff a copy of Local Rule 281. 15 | IT IS SO ORDERED. '© | Dated: _ April 22, 2024 | □□ D 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28