(PC) Nailing v. Bigoni

• Court: District Court, E.D. California
• Decided: January 28, 2021
• Docket: 1:20-cv-00668
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 XAVIER NAILING, Case No. 1:20-cv-00668-DAD-EPG (PC) 8 Plaintiff, SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND PLAINTIFF 9 A COPY OF LOCAL RULE 281(b)

10 v. Exhaustion Motions: April 27, 2021

11 Motions to Compel: July 14, 2021

12 Responses to Motions K. BIGONI, et al., To Compel: July 28, 2021 13 Defendant(s). Telephonic Discovery 14 and Status Conference: August 11, 2021 Time: 10:00 a.m. 15 Courtroom 10 (EPG)

16 Non-expert Discovery: September 27, 2021 17 Dispositive Motions: October 27, 2021 18 Expert Disclosures: April 29, 2022 19

20 Rebuttal Expert Disclosures: May 30, 2022 21 Plaintiff’s Pretrial 22 Statement: June 29, 2022

23 Defendant(s)’ Pretrial Statement: July 29, 2022 24 Telephonic Trial 25 Confirmation Hearing: August 29, 2022 Time: 1:30 p.m. 26 Courtroom 5 (DAD)

27 Jury Trial: Not Set at This Time

28 1 This Court conducted a scheduling conference on January 27, 2021. Plaintiff Xavier 2 Nailing telephonically appeared on his own behalf. Counsel David E. Kuchinsky telephonically 3 appeared on behalf of Defendant(s). Pursuant to Federal Rule of Civil Procedure 16(b), this 4 Court now sets a schedule for this action. 5 I. DISCOVERY PROCEDURES 6 The parties are now granted leave to serve discovery in addition to that provided as part of 7 initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall 8 proceed as follows: 9 1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil 10 Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed 11 with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that 12 discovery requests shall not be filed unless or until there is a proceeding in which the 13 document or proof of service is at issue). A party may serve on any other party no 14 more than 15 interrogatories, 15 requests for production of documents, and 15 requests 15 for admission. On motion, these limits may be increased for good cause. 16 2. Responses to written discovery requests shall be due forty-five (45) days after the 17 request is first served. Boilerplate objections are disfavored and may be summarily 18 overruled by the Court. Responses to document requests shall include all documents 19 within a party’s possession, custody, or control. Fed. R. Civ. P. 34(a)(1). Documents 20 are deemed within a party’s possession, custody, or control if the party has actual 21 possession, custody, or control thereof, or the legal right to obtain the property on 22 demand. 23 3. If any party or third party withholds a document on the basis of privilege, that party or 24 third party shall provide a privilege log to the requesting party identifying the date, 25 author, recipients, general subject matter, and basis of the privilege within thirty (30) 26 days after the date that responses are due. The privilege log shall simultaneously be 27 filed with the Court. Failure to provide and file a privilege log within this time 28 shall result in a waiver of the privilege. Additionally, if a party is claiming a right 1 to withhold witness statements and/or evidence gathered from investigation(s) 2 into the incident(s) at issue in the complaint based on the official information 3 privilege, the withholding party shall submit the withheld witness statements 4 and/or evidence to the Court for in camera review, along with an explanation of 5 why the witness statements and/or evidence is privileged.1 The witness statements 6 and/or evidence shall be Bates stamped, and mailed to Judge Grosjean at 2500 Tulare 7 Street, Sixth Floor, Fresno, CA 93721. The withholding party shall also file and serve 8 a notice that they have complied with this order. All other claims of privilege, 9 including claims of the official information privilege over information other than 10 witness statements and/or evidence gathered from investigation(s) into the incident(s) 11 at issue in the complaint, may be challenged via a motion to compel. 12 4. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose 13 any witness confined in a prison on the condition that, at least fourteen (14) days 14 before such a deposition, Defendant(s) serve all parties with the notice required by 15 Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to participate in a 16 properly noticed deposition could result in sanctions against Plaintiff, including 17 monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule of Civil 18 Procedure 30(b)(4), the parties may take any deposition under this section by video 19 conference without a further motion or order of the Court. Due to security concerns 20 1 See Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“[P]roper exhaustion improves the quality of those 21 prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, 22 witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved.”). 23 The “common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting litigant 24 and subject to disclosure. . . .” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (internal citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of 25 interests in ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege.’”) (quoting Kerr v. 26 U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended on denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) 27 (“Government personnel files are considered official information. To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is 28 greater, the privilege bars discovery.”) (internal citations omitted). 1 and institutional considerations not applicable to Defendant(s), Plaintiff must seek 2 leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of 3 Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion 4 for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary. 5 5. With the Court’s permission, Plaintiff may serve third party subpoenas, including on 6 the California Department of Corrections and Rehabilitation and/or the Office of the 7 Inspector General, if Plaintiff seeks documents from entities that are not presently 8 defendants in this case. To issue a subpoena on these entities, or any other third 9 parties, Plaintiff must file a request for the issuance of a subpoena duces tecum with 10 the Court. If the Court approves the request, it may issue Plaintiff a subpoena duces 11 tecum, commanding the production of documents from a non-party, and may 12 command service of the subpoena by the United States Marshals Service. Fed. R. Civ. 13 P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request 14 only if the documents sought from the non-party are not equally available to Plaintiff 15 and are not obtainable from Defendant(s) through a Rule 34 request for production of 16 documents. In any request for a subpoena, Plaintiff must: (1) identify with specificity 17 the documents sought and from whom; and (2) make a showing in the request that the 18 records are only obtainable through a third party. The documents requested must also 19 fall within the scope of discovery allowed in this action. See Fed. R. Civ. P. 26(b)(1). 20 6. The parties are required to act in good faith during the course of discovery and the 21 failure to do so may result in the payment of expenses pursuant to Federal Rule of 22 Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal 23 Rules of Civil Procedure or the Local Rules. 24 7. A discovery and status conference is set for August 11, 2021, at 10:00 a.m., before 25 Magistrate Judge Erica P. Grosjean. Parties have leave to appear by phone. To join 26 the conference, each party is directed to call the toll-free number (888) 251−2909 and 27 use Access Code 1024453. The parties have until July 14, 2021, to file motions to 28 compel further discovery responses. No later than July 28, 2021, the responding party 1 may file response(s) to motion(s) to compel. The motion(s) should include a copy of 2 the request(s) and any response to the request(s) at issue. Unless there is a need for 3 discovery prior to the conference, motions to compel will not be considered until the 4 conference. Motions to compel will not be permitted after the conference absent good 5 cause. The parties should be prepared to address all discovery disputes and all 6 pending motions at the conference. 7 II. PAGE LIMITS AND COURTESY COPIES 8 The parties are advised that unless prior leave of the Court is obtained before the filing 9 deadline,2 all moving and opposition briefs or legal memoranda shall not exceed twenty-five (25) 10 pages. Reply briefs by the moving party shall not exceed ten (10) pages. These page limits do 11 not include exhibits. 12 Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in 13 length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies 14 shall reflect the CM/ECF document numbers and pagination. 15 III. NON-EXPERT DISCOVERY DEADLINE 16 The deadline for the completion of all non-expert discovery is September 27, 2021. All 17 non-expert discovery must be provided by this date, including discovery compelled following the 18 discovery and status conference. 19 IV. EXPERT DISCOVERY DEADLINES 20 The deadline for all parties to serve their expert disclosures is April 29, 2022. Parties 21 have until May 30, 2022, to serve their rebuttal expert disclosures. 22 V. EXHAUSTION MOTIONS DEADLINE 23 The deadline for Defendant(s) to present any challenge for failure to exhaust 24 administrative remedies is April 27, 2021. The exhaustion defense may be raised only by filing a 25 motion for summary judgment under Federal Rule of Civil Procedure 56. Failure to raise the 26 exhaustion defense by this deadline will result in waiver of the defense. See Albino v. Baca, 747 27 F.3d 1162, 1170 (9th Cir. 2014) (providing that the exhaustion question should be decided as

28 2 Parties may seek leave by filing a short motion. 1 early as feasible). 2 VI. DISPOSITIVE MOTIONS DEADLINE 3 The deadline for filing dispositive motions (except for dispositive motions based on the 4 defense of failure to exhaust administrative remedies) is October 27, 2021. 5 VII. MAGISTRATE JUDGE JURISDICTION 6 The parties have not consented to the jurisdiction of a magistrate judge pursuant to 28 7 U.S.C. § 636(c). 8 VIII. TELEPHONIC TRIAL CONFIRMATION HEARING 9 A Telephonic Trial Confirmation Hearing is set for August 29, 2022, at 1:30 p.m., in 10 Courtroom 5, before District Judge Dale A. Drozd. To participate telephonically, the parties must 11 dial into the conference at 877-402-9757, using access code 6966236, at the time of the hearing. 12 Because the Court may be hearing other matters using the same conference line, please wait to 13 state your appearance until your case has been called and appearances are requested. Keep all 14 background noise to a minimum. 15 In addition to the matters already required to be addressed in the pretrial statement in 16 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 17 order to obtain the attendance of witnesses. The procedures and requirements for making such a 18 showing are outlined in detail below. Plaintiff is advised that failure to comply with the 19 procedures set forth below may result in the preclusion of any or all witnesses named in 20 Plaintiff’s pretrial statement. 21 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 22 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 23 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 24 produce all of the evidence to prove Plaintiff’s case, whether that evidence is in the form of 25 exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, Plaintiff must follow 26 certain procedures to ensure that the witnesses will be at the trial and available to testify. 27 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 28 Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give 1 testimony cannot come to court unless this Court orders the warden or other custodian to permit 2 the witness to be transported to court. This Court will not issue such an order unless it is satisfied 3 that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual 4 knowledge of relevant facts. 5 A party intending to introduce the testimony of incarcerated witnesses who have agreed to 6 voluntarily attend the trial must serve and file a written motion for a court order requiring that 7 such witnesses be brought to court at the time of trial. The motion must: (1) state the name, 8 address, and prison identification number of each such witness; and (2) be accompanied by 9 declarations showing that each witness is willing to testify and that each witness has actual 10 knowledge of relevant facts. The motion should be entitled “Motion for Attendance of 11 Incarcerated Witnesses.” 12 The willingness of the prospective witness can be shown in one of two ways: (1) the party 13 him or herself can swear by declaration under penalty of perjury that the prospective witness has 14 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 15 which declaration the party must state when and where the prospective witness informed the party 16 of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 17 perjury by the prospective witness, in which the witness states that he or she is willing to testify 18 without being subpoenaed. 19 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 20 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 21 eyewitness or an ear-witness to the relevant facts, the party can swear by declaration under 22 penalty of perjury that the prospective witness has actual knowledge (e.g., if an incident occurred 23 in Plaintiff’s cell and, at the time, Plaintiff saw that a cellmate was present and observed the 24 incident, Plaintiff may swear to the cellmate’s ability to testify); or (2) the party can serve and file 25 a declaration signed under penalty of perjury by the prospective witness in which the witness 26 describes the relevant facts to which the prospective witness was an eye or ear witness. Whether 27 the declaration is made by the party or by the prospective witness, it must be specific about the 28 incident, when and where it occurred, who was present, and how the prospective witness 1 happened to be in a position to see or to hear what occurred at the time it occurred. 2 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 3 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who 4 refuse to testify voluntarily, the party should serve and file a written motion for a court order 5 requiring that such witnesses be brought to court at the time of trial. Such motion should be in 6 the form described above. In addition, the party must indicate in the motion that the incarcerated 7 witnesses are not willing to testify voluntarily. 8 The Court will review and rule on the motion(s) for attendance of incarcerated witnesses, 9 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 10 issue the writs necessary to cause the witnesses’ custodian(s) to bring the witnesses to court. 11 Motion(s) for the attendance of incarcerated witnesses, if any, must be filed on or before 12 June 29, 2022. Opposition(s), if any, must be filed on or before July 29, 2022. 13 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 14 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 15 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need 16 be sought or obtained from the Court. 17 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 18 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 19 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the 20 party seeking the witness’s presence must tender an appropriate sum of money for the witness. 21 Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness 22 fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 23 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 24 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 25 location of each unincarcerated witness. The Court will calculate the travel expense for each 26 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, 27 submit a money order made payable to the witness for the full amount of the witness’s travel 28 expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 1 unincarcerated witness by the United States Marshals Service unless the money order is tendered 2 to the Court. Because no statute authorizes the use of public funds for these expenses in civil 3 cases, the tendering of witness fees and travel expenses is required even if Plaintiff was granted 4 leave to proceed in forma pauperis. 5 If Plaintiff wishes to have the Marshals Service serve any unincarcerated witnesses who 6 refuse to testify voluntarily, Plaintiff must submit the money orders to the Court no later than 7 July 29, 2022. In order to ensure timely submission of the money orders, Plaintiff must notify 8 the Court of the names and locations of his or her witnesses, in compliance with the instructions 9 above, no later than June 29, 2022. 10 Plaintiff shall file and serve a pretrial statement as described in this order on or before 11 June 29, 2022. Defendant(s) shall file and serve a pretrial statement as described in this order on 12 or before July 29, 2022. 13 The parties are advised that failure to file pretrial statements as required by this order may 14 result in the imposition of appropriate sanctions, which may include dismissal of the action or 15 entry of default. 16 The Clerk of Court is directed to send Plaintiff a copy of Local Rule 281(b). 17 IX. TRIAL DATE 18 Given the Court’s Standing Order in Light of Ongoing Judicial Emergency in the Eastern 19 District of California, no trial date is set at this time. The trial date will be set at a later date. 20 X. EFFECT OF THIS ORDER 21 This order represents the Court and the parties’ best estimated schedule to complete this 22 case. Any party unable to comply with the dates outlined in this order shall immediately file an 23 appropriate motion or stipulation identifying the requested modification(s). 24 The dates set in this order are considered to be firm and will not be modified absent a 25 showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the 26 civil case docket, this Court disfavors requests to modify established dates. 27 \\\ 28 \\\ 1 Failure to comply with this order may result in the imposition of sanctions. 2 3 IT IS SO ORDERED. 4] Dated: _ January 27, 2021 hey 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10