(PC) Munoz v. Underwood ( 2019 )

1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 MOIZEZ M. MUNOZ, Case No. 1:18-cv-01665-DAD-EPG (PC) 6 Plaintiff, SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND PLAINTIFF 7 A COPY OF LOCAL RULE 281(b) 8 v. Telephonic Discovery 9 and Status Conference: May 11, 2020 Time: 1:30 p.m. 10 Courtroom 10 (EPG) UNDERWOOD, et al., 11 Non-expert Defendants. Discovery Cutoff: June 19, 2020 12 13 Dispositive Motion Filing Deadline: July 31, 2020 14 Expert Disclosure 15 Deadline: March 12, 2021 16 Rebuttal Expert 17 Disclosure Deadline: April 8, 2021 18 Telephonic Trial 19 Confirmation Hearing: June 7, 2021 Time: 1:30 p.m. 20 Courtroom 5 (DAD) 21 Jury Trial: August 3, 2021 Time: 1:00 p.m. 22 Courtroom 5 (DAD) 23 This Court conducted a scheduling conference on December 2, 2019. Plaintiff Moizez 24 Munoz telephonically appeared on his own behalf. Counsel Van Kamberian and Phillip Arthur 25 telephonically appeared on behalf of Defendant(s). Pursuant to Federal Rule of Civil Procedure 26 16(b), this Court now sets a schedule for this action. 27 /// 28 1 I. DISCOVERY PROCEDURES 2 The parties are now granted leave to serve discovery in addition to that provided as part of 3 initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall 4 proceed as follows: 5 1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil 6 Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed 7 with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that 8 discovery requests shall not be filed unless or until there is a proceeding in which the 9 document or proof of service is at issue). A party may serve on any other party no 10 more than 15 interrogatories, 15 requests for production of documents, and 15 requests 11 for admission. On motion, these limits may be increased for good cause. 12 2. Responses to written discovery requests shall be due forty-five (45) days after the 13 request is first served. Boilerplate objections are disfavored and may be summarily 14 overruled by the Court. Responses to document requests shall include all documents 15 within a party’s possession, custody or control. Fed. R. Civ. P. 34(a)(1). Documents 16 are deemed within a party’s possession, custody, or control if the party has actual 17 possession, custody, or control thereof, or the legal right to obtain the property on 18 demand. 19 3. If any party or third party withholds a document on the basis of privilege, that party or 20 third party shall provide a privilege log to the requesting party identifying the date, 21 author, recipients, general subject matter, and basis of the privilege within thirty (30) 22 days after the date that responses are due. The privilege log shall simultaneously be 23 filed with the Court. Failure to provide and file a privilege log within this time 24 shall result in a waiver of the privilege. Additionally, if a party is claiming a right 25 to withhold witness statements and/or evidence gathered from investigation(s) 26 into the incident(s) at issue in the complaint based on the official information 27 privilege, the withholding party shall submit the withheld witness statements 28 and/or evidence to the Court for in camera review, along with an explanation of 1 why the witness statements and/or evidence is privileged.1 The witness statements 2 and/or evidence shall be Bates stamped, and mailed to Judge Grosjean at 2500 Tulare 3 Street, Sixth Floor, Fresno, CA 93721. The withholding party shall also file and serve 4 a notice that they have complied with this order. All other claims of privilege, 5 including claims of the official information privilege over information other than 6 witness statements and/or evidence gathered from investigation(s) into the incident(s) 7 at issue in the complaint, may be challenged via a motion to compel. 8 4. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose 9 Plaintiff and any other witness confined in a prison on the condition that, at least 10 fourteen (14) days before such a deposition, Defendant(s) serve all parties with the 11 notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 12 participate in a properly noticed deposition could result in sanctions against Plaintiff, 13 including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule 14 of Civil Procedure 30(b)(4), the parties may take any deposition under this section by 15 video conference without a further motion or order of the Court. Due to security 16 concerns and institutional considerations not applicable to Defendant(s), Plaintiff must 17 seek leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of 18 Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion 19 for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary. 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 5. With the Court’s permission, Plaintiff may serve third party subpoenas, including on 2 the California Department of Corrections and Rehabilitation and/or the Office of the 3 Inspector General, if Plaintiff seeks documents from entities that are not presently 4 defendants in this case. To issue a subpoena on these entities, or any other third 5 parties, Plaintiff must file a request for the issuance of a subpoena duces tecum with 6 the Court. If the Court approves the request, it may issue Plaintiff a subpoena duces 7 tecum, commanding the production of documents from a non-party, and may 8 command service of the subpoena by the United States Marshals Service. Fed. R. Civ. 9 P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request 10 only if the documents sought from the non-party are not equally available to Plaintiff 11 and are not obtainable from Defendant(s) through a Rule 34 request for production of 12 documents. In any request for a subpoena, Plaintiff must: (1) identify with specificity 13 the documents sought and from whom; and (2) make a showing in the request that the 14 records are only obtainable through a third party. The documents requested must also 15 fall within the scope of discovery allowed in this action. See Fed. R. Civ. P. 26(b)(1). 16 6. The parties are required to act in good faith during the course of discovery and the 17 failure to do so may result in the payment of expenses pursuant to Federal Rule of 18 Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal 19 Rules of Civil Procedure or the Local Rules. 20 7. A discovery and status conference is set for May 11, 2020, at 1:30 p.m. Parties have 21 leave to appear by phone. To join the conference, each party is directed to call the 22 toll-free number (888) 251−2909 and use Access Code 1024453. Up until twenty- 23 eight days before the conference, the parties may file motions to compel further 24 discovery responses. No later than fourteen days before the conference, the 25 responding party may file response(s) to motion(s) to compel. The motion should 26 include a copy of the request(s) and any response to the request(s) at issue. Unless 27 there is a need for discovery prior to the conference, motions to compel will not be 28 considered until the conference. Motions to compel will not be permitted after the 1 conference absent good cause. The parties should be prepared to address all discovery 2 disputes and all pending motions at the conference. 3 8. Plaintiff shall make arrangements with staff at his or her institution of confinement for 4 his or her attendance at the discovery and status conference. Plaintiff’s institution of 5 confinement shall make Plaintiff available for the conference at the date and time 6 indicated above. To the extent possible, prior to the conference defense counsel shall 7 confirm with Plaintiff’s institution of confinement that arrangements have been made 8 for Plaintiff’s attendance. 9 II. PAGE LIMITS AND COURTESY COPIES 10 The parties are advised that unless prior leave of the Court is obtained before the filing 11 deadline,2 all moving and opposition briefs or legal memoranda shall not exceed twenty-five (25) 12 pages. Reply briefs by the moving party shall not exceed ten (10) pages. These page limits do 13 not include exhibits. 14 Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in 15 length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies 16 shall reflect the CM/ECF document numbers and pagination. 17 III. NON-EXPERT DISCOVERY DEADLINE 18 The deadline for the completion of all non-expert discovery is June 19, 2020. All non- 19 expert discovery must be provided by this date, including discovery compelled following the 20 discovery and status conference. 21 IV. EXPERT DISCOVERY DEADLINES 22 The deadline for all parties to serve their expert disclosures is March 12, 2021. Parties 23 have until April 8, 2021, to serve their rebuttal expert disclosures. 24 V. DISPOSITIVE MOTIONS DEADLINE 25 The deadline for filing dispositive motions (including dispositive motions based on the 26 defense of failure to exhaust administrative remedies) is July 31, 2020. Failure to raise the 27 exhaustion issue by this deadline will result in waiver of the defense. See Albino v. Baca, 747 28 2 Parties may seek leave by filing a short motion. 1 F.3d 1162, 1170 (9th Cir. 2014) (providing that the exhaustion question should be decided as 2 early as feasible). 3 If Defendant(s) file a motion for summary judgment, Defendant(s) shall simultaneously 4 provide Plaintiff with the notice and warning required by Rand v. Rowland, 154 F.3d 952 (9th 5 Cir. 1998). 6 VI. MAGISTRATE JUDGE JURISDICTION 7 The parties have not consented to the jurisdiction of a magistrate judge pursuant to 28 8 U.S.C. § 636(c). 9 VII. TELEPHONIC TRIAL CONFIRMATION HEARING 10 A Telephonic Trial Confirmation Hearing is set for June 7, 2021, at 1:30 p.m., in 11 Courtroom 5, before District Judge Dale A. Drozd. To participate telephonically, the parties must 12 dial into the conference at 877-402-9757, using access code 6966236, at the time of the hearing. 13 Counsel for Defendant(s) is required to arrange for the participation of Plaintiff in the Telephonic 14 Trial Confirmation Hearing. Because the Court may be hearing other matters using the same 15 conference line, please wait to state your appearance until your case has been called and 16 appearances are requested. Keep all background noise to a minimum. 17 In addition to the matters already required to be addressed in the pretrial statement in 18 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 19 order to obtain the attendance of witnesses. The procedures and requirements for making such a 20 showing are outlined in detail below. Plaintiff is advised that failure to comply with the 21 procedures set forth below may result in the preclusion of any or all witnesses named in 22 Plaintiff’s pretrial statement. 23 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 24 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 25 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 26 produce all of the evidence to prove Plaintiff’s case, whether that evidence is in the form of 27 exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, Plaintiff must follow 28 certain procedures to ensure that the witnesses will be at the trial and available to testify. 1 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 2 Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give 3 testimony cannot come to court unless this Court orders the warden or other custodian to permit 4 the witness to be transported to court. This Court will not issue such an order unless it is satisfied 5 that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual 6 knowledge of relevant facts. 7 A party intending to introduce the testimony of incarcerated witnesses who have agreed to 8 voluntarily attend the trial must serve and file a written motion for a court order requiring that 9 such witnesses be brought to court at the time of trial. The motion must: (1) state the name, 10 address, and prison identification number of each such witness; and (2) be accompanied by 11 declarations showing that each witness is willing to testify and that each witness has actual 12 knowledge of relevant facts. The motion should be entitled “Motion for Attendance of 13 Incarcerated Witnesses.” 14 The willingness of the prospective witness can be shown in one of two ways: (1) the party 15 him or herself can swear by declaration under penalty of perjury that the prospective witness has 16 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 17 which declaration the party must state when and where the prospective witness informed the party 18 of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 19 perjury by the prospective witness, in which the witness states that he or she is willing to testify 20 without being subpoenaed. 21 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 22 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 23 eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell 24 and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may 25 swear to the cellmate’s ability to testify), the party can swear by declaration under penalty of 26 perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a 27 declaration signed under penalty of perjury by the prospective witness in which the witness 28 describes the relevant facts to which the prospective witness was an eye or ear witness. Whether 1 the declaration is made by the party or by the prospective witness, it must be specific about the 2 incident, when and where it occurred, who was present, and how the prospective witness 3 happened to be in a position to see or to hear what occurred at the time it occurred. 4 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 5 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who 6 refuse to testify voluntarily, the party should serve and file a written motion for a court order 7 requiring that such witnesses be brought to court at the time of trial. Such motion should be in 8 the form described above. In addition, the party must indicate in the motion that the incarcerated 9 witnesses are not willing to testify voluntarily. 10 The Court will review and rule on the motion(s) for attendance of incarcerated witnesses, 11 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 12 issue the writs necessary to cause the witnesses’ custodian(s) to bring the witnesses to court. 13 Motion(s) for the attendance of incarcerated witnesses, if any, must be filed on or before 14 April 7, 2021. Opposition(s), if any, must be filed on or before May 7, 2021. 15 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 16 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 17 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need 18 be sought or obtained from the Court. 19 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 20 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 21 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the 22 party seeking the witness’s presence must tender an appropriate sum of money for the witness. 23 Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness 24 fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 25 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 26 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 27 location of each unincarcerated witness. The Court will calculate the travel expense for each 28 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, 1 submit a money order made payable to the witness for the full amount of the witness’s travel 2 expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 3 unincarcerated witness by the United States Marshals Service unless the money order is tendered 4 to the Court. Because no statute authorizes the use of public funds for these expenses in civil 5 cases, the tendering of witness fees and travel expenses is required even if Plaintiff was granted 6 leave to proceed in forma pauperis. 7 If Plaintiff wishes to have the Marshals Service serve any unincarcerated witnesses who 8 refuse to testify voluntarily, Plaintiff must submit the money orders to the Court no later than 9 May 7, 2021. In order to ensure timely submission of the money orders, Plaintiff must notify the 10 Court of the names and locations of his witnesses, in compliance with the instructions above, no 11 later than April 7, 2021. 12 Plaintiff shall file and serve a pretrial statement as described in this order on or before 13 May 7, 2021. Defendant(s) shall file and serve a pretrial statement as described in this order on 14 or before April 7, 2021. 15 The parties are advised that failure to file pretrial statements as required by this order may 16 result in the imposition of appropriate sanctions, which may include dismissal of the action or 17 entry of default. 18 The Clerk of Court is directed to send Plaintiff a copy of Local Rule 281(b). 19 VIII. TRIAL DATE 20 A trial is set for August 3, 2021, at 1:00 p.m., in Courtroom 5, before District Judge Dale 21 A. Drozd. 22 IX. EFFECT OF THIS ORDER 23 This order represents the Court and the parties’ best estimated schedule to complete this 24 case. Any party unable to comply with the dates outlined in this order shall immediately file an 25 appropriate motion or stipulation identifying the requested modification(s). 26 The dates set in this order are considered to be firm and will not be modified absent a 27 showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the 28 civil case docket, this Court disfavors requests to modify established dates. 1 Failure to comply with this order may result in the imposition of sanctions. 2 3 IT IS SO ORDERED. 4 Dated: _ December 3, 2019 [sl heey 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