(PC) Williams v. Castro

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 ROBERT CURTIS WILLIAMS, III Case No. 1:20-cv-01617-SAB (PC)

11 Plaintiff, TRIAL SCHEDULING ORDER

12 v. Telephonic Pretrial Hearing: January 20, 2023, at 9:30 a.m. 13 CASTRO, et al.,

14 Defendants. Telephonic Motions in Limine Hearing: February 8, 2023, at 10:00 a.m. 15

16 Jury Trial: February 21, 2023, at 8:30 a.m. in Courtroom 9 (SAB); 2-3 Days 17

19 Plaintiff Robert Curtis Williams, III is proceeding pro se and in forma pauperis in this 20 civil rights action filed pursuant to 42 U.S.C. § 1983. All parties consented to Magistrate Judge 21 jurisdiction. (ECF No. 38.) 22 This action is proceeding against Defendants Regado and Castro for deliberate 23 indifference to Plaintiff’s safety and violation of the Equal Protection Clause. 24 On August 26, 2022, Defendants filed a notice of intent to not file a dispositive motion. 25 Accordingly, this case is no ready to proceed to jury trial. This matter is set for a telephonic 26 pretrial hearing on January 20, 2023, at 9:30 a.m. The matter is also set for a 2 to 3 day jury 27 trial beginning on February 21, 2023, at 8:30 a.m. 1 In preparation of trial, the parties are required to file Pretrial Statements in accordance 2 with the schedule set forth herein. In addition to the matters already required to be addressed in 3 the pretrial statement in accordance with Local Rule 281, Plaintiff will be required to make a 4 particularized showing in order to obtain the attendance of witnesses. The procedures and 5 requirements for making such a showing are outlined in detail below. 6 1. Pretrial Statement (Local Rule 281) 7 Pursuant to Local Rule 281, the parties shall file a Pretrial Statement. The parties shall 8 file their pretrial statements no later than December 30, 2022. The telephonic pretrial hearing 9 will be held January 20, 2023, at 9:30 a.m. before the United States Magistrate Judge Stanley 10 A. Boone in Courtroom 9. 11 The form and content of the Pretrial Statement must comply with Local Rule 281. 12 Pursuant to Local Rule 281(b), the Pretrial Statement shall including the following matters, 13 under the following captions, and in the following order: 14 (1) Jurisdiction – Venue. The factual and statutory basis of federal jurisdiction and 15 venue and whether there is any dispute concerning jurisdiction or venue; 16 (2) Jury – Non-Jury. Whether the party has demanded a jury trial of all or any of 17 the issues or, if not, whether a demand for jury trial made by any other party is conceded or 18 contested; 19 (3) Undisputed Facts. A plain, concise statement of the facts that are undisputed; 20 (4) Disputed Factual Issues. A plain, concise statement of each fact (and any 21 related essential facts) that the party claims or concedes to be in dispute; 22 (5) Disputed Evidentiary Issues. A plain, concise summary of any reasonably 23 anticipated disputes concerning admissibility of live and deposition testimony, physical and 24 demonstrative evidence and the use of special technology at trial, including computer animation, 25 video discs, and other high technology, and a statement whether each such dispute should be 26 resolved by motion in limine, briefed in the trial, brief, or addressed in some other manner; 27 (6) Special Factual Information in Certain Actions. In addition to the facts and 1 following types of actions shall be specified within either the disputed or undisputed facts 2 sections as appropriate: 3 (A) The date, place, and general nature of the incident; the particular acts, 4 omissions, or conditions constituting the basis for liability; the particular acts, omissions or 5 conditions 6 constituting the basis of any defense; any statute, ordinance, or regulation violated by either 7 party; the applicability of the doctrine of strict liability or res ipsa loquitur. 8 (B) Each plaintiff’s age; injuries sustained; any prior injury or condition 9 worsened; periods of hospitalization; medical expenses and estimated future medical expenses; 10 the period of total and/or partial disability; annual, monthly, or weekly earnings before the 11 incident; earnings loss to date and estimated diminution of future earnings power; property 12 damage; general damages; punitive damages; 13 (7) Relief Sought. The elements of monetary damage, if any, and the specific nature 14 of any other relief sought; 15 (8) Points of Law. A statement of the legal theory or theories of recovery or of 16 defense and of any points of law (substantive or procedural) that are or may reasonably be 17 expected to be in controversy, citing the pertinent statues, ordinances, regulations, cases, and 18 other authorities relied upon. Extended legal argument is not required in the pretrial statement; 19 (9) Abandoned Issues. A statement of all issues raised by the pleadings that have 20 been abandoned, including, for example, claims for relief and affirmative defenses; 21 (10) Witnesses. A list (names and addresses) of all prospective witnesses, whether 22 offered in person or by deposition or interrogatory, designating those who are expert witnesses. 23 Only witnesses so listed will be permitted to testify at the trial, except as may be otherwise 24 provided in the pretrial order; 25 (11) Exhibits – Schedules and Summaries. A list of documents or other exhibits that 26 the party expects to offer at trial. Only exhibits so listed will be permitted to be offered at trial 27 except as may be otherwise provided in the pretrial order. 1 (12) Discovery Documents. A list of all portions of depositions, answers to 2 interrogatories, and responses to requests for admission that the party expects to offer at trial; 3 (13) Further Discovery or Motions. Any requests for further discovery or pretrial 4 motions. Whether discovery and/or law and motion has been terminated by a Court order, 5 counsel shall set forth the grounds for relief from that order and why a motion to be relieved was 6 not made before the date ordered in the status conference for termination. Motions for relief at 7 pretrial are not favored and will ordinarily be denied unless the moving party makes a strong 8 showing; 9 (14) Stipulations. Any stipulations requested or offered for pretrial or trial purposes; 10 (15) Amendments – Dismissals. Any requested amendments to pleadings, 11 dismissals, additions or subtractions of parties, or dispositions as to defaulting parties; 12 (16) Settlement Negotiations. A statement whether settlement negotiations between 13 parties and/or a court settlement conference under L.R. 270 would be helpful; 14 (17) Agreed Statements. A statement whether presentation of all or part of the action 15 upon an Agreed Statement of Facts is feasible and advisable; 16 (18) Separate Trial of Issues. A statement whether separate trial of any of the issues 17 is feasible and advisable; 18 (19) Impartial Experts – Limitation of Experts. A statement whether appointment 19 by the Court of impartial expert witnesses or limitation of the number of experts witnesses is 20 advisable; 21 (20) Attorneys’ Fees. A statement whether attorney’s fees are sought and the time 22 and manner in which they are to be ascertained. See L.R. 293; 23 (21) Trial Exhibits. Any special handling of trial exhibits and a statement of 24 advisability of court retention of exhibits pending appeal decision. See L.R. 138(e); 25 (22) Trial Protective Order. Whether a trial protective order will be sought pursuant 26 to L.R. 141.1(b)(2); and 27 1 (23) Miscellaneous. Any other appropriate comments, suggestions, or information 2 that might aid in the disposition of the action, including references to any matters set forth in 3 Fed. R. Civ. P. 16(c). 4 A party’s failure to comply with any of these pretrial statement requirements may 5 result in the Court’s excluding witnesses, evidence and/or legal issues related to the case at 6 trial. 7 2. Disclosure of Expert Witness: 8 If either party desires to include expert witnesses at trial, they must comply with the 9 disclosure and timelines requirements set forth in Federal Rule of Civil Procedure 26(2)(2) and 10 (a)(2)(D). 11 3. Plaintiff’s Witness Procedures: 12 Because the Plaintiff is an incarcerated state prisoner, the plaintiff must comply with 13 certain procedures associated with introducing evidence and bringing witnesses to trial. A 14 failure to comply with these requirements will result in an exclusion of witnesses and/or 15 trial evidence and will not be just cause for continuance of the trial date. 16 Plaintiff must be prepared to introduce evidence to prove each of the alleged facts that 17 support the claims raised in the lawsuit. In general, there are two kinds of trial evidence: (1) 18 exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to produce all of the 19 evidence to prove his case, whether that evidence is in the form of exhibits or witness testimony. 20 If Plaintiff wants to call witnesses to testify, he must follow certain procedures to ensure that the 21 witnesses will be at the trial and available to testify. Plaintiff is advised that failure to comply 22 with the procedures set forth below may result in the preclusion of any and all witnesses named 23 in his pretrial statement. Notwithstanding the requirements set forth herein, a motion for the 24 attendance of incarcerated witnesses will only be granted by the Court if the moving party has 25 shown the witnesses have relevant information and the Court determines the witnesses’ presence 26 will substantially further the resolution of the case. Wiggins v. Cnty. Of Alameda, 717 F.2d 466, 27 468 n.1 (9th Cir. 1983). The decision to grant or deny the motion is within the discretion of the 1 The following procedures are required to ensure the attendance of Plaintiff’s witnesses at 2 trial. The witnesses may be incarcerated or unincarcerated and willing or unwilling to testify 3 voluntarily. Plaintiff should carefully review the procedures set forth below for filing motions 4 based on the different circumstances of each individual witness.

5 a. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 6 Testify Voluntarily An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot 7 come to court unless the Court orders the warden or other custodian to permit the witness to be 8 transported to court. The Court will not issue such an order unless it is satisfied that the 9 prospective witness has actual knowledge of relevant facts. 10 A party intending to introduce the testimony of incarcerated witnesses who have agreed 11 voluntarily to attend the trial must serve and file a written motion for a court order requiring that 12 such witnesses be brought to court at the time of trial. The motion must: (1) state the name, 13 address, and prison identification number of each such witness; and (2) be accompanied by 14 declarations showing 15 that each witness is willing to testify and that each witness has actual knowledge of relevant 16 facts. The motion should be entitled “Motion for Attendance of Incarcerated Witnesses.” 17 The willingness of the prospective witness can be shown in one of two ways: (1) the 18 party himself can swear by declaration under penalty of perjury that the prospective witness has 19 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 20 which declaration the party must state when and where the prospective witness informed the 21 party of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 22 perjury by the prospective witness, in which the witness states that he or she is willing to testify 23 without being subpoenaed. 24 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 25 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 26 eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell 27 and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff 1 may swear to the cellmate’s ability to testify), the party himself can swear by declaration under 2 penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve 3 and file a declaration signed under penalty of perjury by the prospective witness in which the 4 witness describes the relevant facts to which the prospective witness was an eye or ear witness. 5 Whether the declaration is made by the party or by the prospective witness, it must be specific 6 about the incident, when and where it occurred, who was present, and how the prospective 7 witness happened to be in a position to see or to hear what occurred at the time it occurred. 8 The Court will review and rule on the motion for attendance of incarcerated witnesses, 9 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 10 issue the order necessary to cause the witness’s custodian to bring the witness to court. 11 Plaintiff shall file any motions for the attendance of incarcerated witnesses who are 12 willing to testify, on or before November 15, 2022. Oppositions, if any, must be filed on or 13 before November 29, 2022.

14 b. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 15 Testify Voluntarily If a party seeks to obtain the attendance of incarcerated witnesses who refuse to testify 16 voluntarily, the party must submit a motion for the attendance of such witnesses. An 17 incarcerated witness cannot come to court unless the Court orders the warden or other custodian 18 to permit the witness to be transported to court. The Court will not issue an order unless it is 19 satisfied that the prospective witness has actual knowledge of relevant facts. In addition, the 20 party must indicate in the motion that the incarcerated witnesses are not willing to testify 21 voluntarily. 22 The motion must: (1) state the name, address, and prison identification number of each 23 such witness; and (2) be accompanied by a showing that each witness has actual knowledge of 24 relevant facts. The motion should be entitled “Motion for Attendance of Incarcerated 25 Witnesses.” 26 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 27 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 1 eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell 2 and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff 3 may swear to the cellmate’s ability to testify), the party himself can swear by declaration under 4 penalty of perjury that the prospective witness has actual knowledge; or (2) the party can serve 5 and file a declaration signed under penalty of perjury by the prospective witness in which the 6 witness describes the relevant facts to which the prospective witness was an eye or ear witness. 7 Whether the declaration is made by the party or by the prospective witness, it must be specific 8 about the incident, when and where it occurred, who was present, and how the prospective 9 witness happened to be in a position to see or to hear what occurred at the time it occurred. 10 The Court will review and rule on the motion for attendance of incarcerated witnesses, 11 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 12 issue the order necessary to cause the witness’s custodian to bring the witness to court. 13 Plaintiff shall file any motions for the attendance of incarcerated witnesses who 14 refuse to testify voluntarily, on or before November 15, 2022. Oppositions, if any, must be 15 filed on or before November 29, 2022.

16 c. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who 17 Agree to Testify Voluntarily It is the responsibility of the party who has secured an unincarcerated witness’s voluntary 18 attendance to notify the witness of the time and date of trial. No action need be sought or 19 obtained from the Court. However, the parties are advised that if a witness subsequently refuses 20 to testify prior to trial, the Court will not continue the trial date to allow the party to compel the 21 attendance of the witness at trial, absent a showing of extraordinary circumstances. 22

23 d. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to Testify Voluntarily 24 If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, 25 the witness must be served with a subpoena.1 Fed. R. Civ. P. 45. In addition, the party seeking 26 1 This section does not apply to individuals who are Defendants in this action, as Defendants are directed to be 27 present at all times during the trial unless ordered by the court or upon stipulation However, the parties are still required to list a party as a witness in their pretrial statement. A failure to list a party witness may foreclose that 1 the witness’s presence must tender an appropriate sum of money for the witness. Id. In the case 2 of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 3 plus the witness’s travel expenses. 28 U.S.C. § 1821. 4 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 5 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 6 location of each unincarcerated witness. The Court will calculate the travel expense for each 7 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each 8 witness, submit a money order made payable to the witness for the full amount of the witness’s 9 travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 10 unincarcerated witness by the United States Marshal unless the money order is tendered to the 11 Court. Because no statute authorizes the use of public funds for these expenses in civil cases, the 12 tendering of witness fees and travel expenses is required even if the party was granted leave to 13 proceed in forma pauperis. 14 If Plaintiff wishes to have the United States Marshal serve any unincarcerated 15 witnesses who refuse to testify voluntarily, Plaintiff must submit the money orders to the 16 Court no later than November 15, 2022. In order to ensure timely submission of the money 17 orders, Plaintiff must notify the Court of the names and locations of his witnesses, on or 18 before November 1, 2022. 19 4. Motions In Limine Hearing and Briefing Schedule 20 Any party may file a motion in limine, which is a procedural mechanism to limit in 21 advance testimony or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111 22 (9th Cir. 2009). In the case of a jury trial, the Court’s ruling gives Plaintiff and Defendants’ 23 counsel advance notice of the scope of certain evidence so that admissibility is settled before 24 attempted use of the evidence before the jury. Id. at 1111-1112. Although the Federal Rules do 25 not explicitly provide for the filing of motions in limine, the Court has the inherent power to hear 26 and decide such motions as a function of its duty to expeditiously manage trials by eliminating 27 1 evidence that is clearly inadmissible for any purpose. Luce v. United States, 469 U.S. 38, 41 n.4 2 (1984). 3 This Court further orders the parties to file motions in limine only with respect to 4 important, critical issues. Motions in limine on abstract evidentiary issues or issues more 5 appropriately addressed by the Court on a case-by-case basis (such as a motion in limine to 6 exclude all irrelevant evidence) will be looked upon with disfavor. After satisfying the forgoing, 7 if a motion in limine still seeks to address the admissibility of a particular trial exhibit, the 8 exhibit in question must be referenced by the trial exhibit number so that the court can review the 9 actual exhibit for admissibility. If the exhibit sought to be admitted would not be in the court’s 10 possession one week prior to the motion in limine hearing, then the exhibit in question must be 11 included in the motion. Failure to properly reference or attach an exhibit in the motion will 12 result in the request being denied. 13 The parties shall not file separate motions in limine for every issue presented to the 14 Court. Rather, if a party wishes to file a motions in limine, each party shall file one consolidated 15 motion in limine which is subdivided into separate sections for each issue setting for the legal 16 authority and analysis. The responding party shall file one opposition in response addressing 17 each motion in limine issue in a separate section. 18 The deadline for service and filing of motions in limine is January 11, 2023. The 19 deadline for service and filing of an opposition, if any, is January 25, 2023. A telephonic 20 motions in limine hearing will be held on February 8, 2023, at 10:00 a.m., in Courtroom 9, 21 before the undersigned. Counsel for defendants is directed to arrange for telephone contact with 22 Plaintiff and to contact the Courtroom Deputy, Victoria Gonzales, at (559) 499-5672, prior to the 23 hearing date, to receive instructions regarding the conference call. 24 5. Pre-Marked and Exchange of Exhibits 25 As noted below, no later than January 3, 2023, the parties shall exchange their final 26 exhibit list and pre-marked exhibits, to be addressed at the February 8, 2023, motion in limine 27 hearing. 1 All exhibits must be pre-marked with an exhibit sticker or other legible 2 numbering/lettering. This requirement that exhibits be pre-marked applies both to evidence that 3 will be formally admitted into evidence as well as any other exhibits that will be presented in any 4 manner during trial, such as “demonstrative” evidence. Each individual “original” exhibit that 5 will be submitted to the jury must be stapled/fastened so that the exhibit does not become 6 separated. Further, exhibits submitted to the jury must be pre-marked on the front page only in 7 the manner described above. Impeachment or rebuttal evidence need not be pre-marked. 8 However, evidence of bias, extrinsically introduced, must be pre-marked. 9 a. Joint Exhibits: Joint exhibits are those exhibits which all parties agree may be 10 admitted into evidence without the need for laying a proper foundation under the 11 Federal Rules of Evidence. Joint exhibits must be pre-marked with the 12 designation “J-[Number]” (e.g., J-1, J-2). Those exhibits may be introduced at 13 any time during the course of the trial. However, joint exhibits are not 14 “automatically” admitted into evidence: at least one of the parties must admit a 15 joint exhibit into evidence. If an exhibit is not admitted by any party, the exhibit 16 will not be given to the jury despite its “joint” designation as an exhibit. 17 b. Plaintiff’s Exhibits: Plaintiff’s exhibits must be pre-marked using numbers 18 beginning with 1 (e.g., 1, 2, etc.). 19 c. Defendants’ Exhibits: Defendants’ exhibits must be pre-marked using letters 20 beginning with A (e.g., A, B, C...AA, BB, CC...AAA, BBB, CCC, etc.). 21 No later than January 3, 2023, the parties shall exchange their proposed exhibits to allow 22 for the parties to file objections to be addressed at the motion in limine hearing on February 8, 23 203. Because Plaintiff is incarcerated, he shall submit his exhibits to the Litigation Coordinator 24 at the California State Prison, Los Angeles County, on or before the above-referenced deadline. 25 Further instructions on the submission and use of exhibits during trial will be provided in the 26 pretrial order in this matter, to be filed after the pretrial hearing noted above. 27 Defendants are required to submit trial exhibits for both parties in binders. Counsel shall 1 February 13, 2023. Within the binders, the pre-marked exhibits must be separately tabbed and 2 assembled in sequential order. All of Plaintiff’s exhibits shall be marked sequentially beginning 3 with 1 (e.g., 1, 2, etc.). All of Defendants’ exhibits shall be marked sequentially beginning with 4 A (e.g., A, B, C…AA, BB, CC…AAA, BBB, CCC, etc.). The binders shall be delivered to 5 Courtroom Deputy Clerk Victoria Gonzales prior to trial at a date set forth in the pretrial order. 6 CONCLUSION AND ORDER 7 IT IS HEREBY ORDERED that: 8 1. This matter is set for telephonic pretrial hearing before the Honorable Stanley A. 9 Boone on January 20, 2023, at 9:30 a.m. in Courtroom 9; 10 2. Motions in limine are due on or before January 11, 2023. Oppositions to the 11 motions in limine are due on or before January 25, 2023. This matter is set for telephonic 12 motion in limine hearing before the Honorable Stanley A. Boone on February 8, 2023, at 10:00 13 a.m., in Courtroom 9; 14 3. This matter is set for jury trial before the Honorable Stanley A. Boone on 15 February 21, 2023, at 8:30 a.m. in Courtroom 9; 16 4. Counsel for Defendants is required to arrange for the participation of Plaintiff in 17 the telephonic trial confirmation hearing and motion in limine hearing and to contact Courtroom 18 Deputy, Victoria Gonzales, at (559) 499-5672, prior to the hearing date, to receive instructions 19 regarding the conference call; 20 5. Plaintiff shall serve and file a pretrial statement as described in this order on or 21 before December 30, 2022; 22 6. Defendants shall serve and file a pretrial statement as described in this order on or 23 before December 30, 2022; 24 7. In addition to electronically filing their pretrial statement, Defendants shall e-mail 25 the pretrial statement to: saborders@caed.uscourts.gov; 26 8. If Plaintiff intends to call incarcerated witnesses at the time of trial, Plaintiff shall 27 serve and file a motion for attendance of incarcerated witnesses as described in this order on or 1 9. The opposition to the motion for the attendance of incarcerated witnesses, if any, 2 | shall be filed on or before November 29, 2022; and 3 10. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse 4 | to testify voluntarily, Plaintiff must notify the Court of their names and locations on or before 5 | November 1, 2022, and Plaintiff must submit the money orders, as described in subsection 4 of 6 | this order, to the Court on or before November 15, 2022. 7 8 IT IS SO ORDERED. OF. a Se 9 | Dated: _August 30, 2022 _ ef 0 UNITED STATES MAGISTRATE JUDGE

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