(PC) Howell v. Gallagher ( 2020 )

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 KAREEM J. HOWELL, Case No. 1:19-cv-00673-AWI-EPG (PC) 5 Plaintiff, SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND PLAINTIFF 6 A COPY OF LOCAL RULE 281(b) 7 v. Exhaustion Motions: February 26, 2021 8 Motions to Compel: March 8, 2021 9 Responses to Motions J.GALLAGHER, et al., To Compel: March 22, 2021 10 Defendant(s). Telephonic Discovery 11 and Status Conference: April 5, 2021 Time: 1:30 p.m. 12 Courtroom 10 (EPG) 13 Non-expert Discovery: May 21, 2021 14 Dispositive Motions: June 18, 2021 15 Expert Disclosures: December 17, 2021 16 17 Rebuttal Expert Disclosures: January 20, 2022 18 Plaintiff’s Pretrial 19 Statement: February 18, 2022 20 Defendant(s)’ Pretrial Statement: March 21, 2022 21 Telephonic Trial 22 Confirmation Hearing: April 20, 2022 Time: 10:00 a.m. 23 Courtroom 2 (AWI) 24 Jury Trial: June 28, 2022 Time: 8:30 a.m. 25 Courtroom 2 (AWI) 26 ORDER FOR CLERK TO SEND COPY OF THIS ORDER TO LITIGATION 27 COORDINATOR AT PLAINTIFF’S INSTITUTION OF CONFINEMENT 28 1 In light of the coronavirus (COVID-19) outbreak and the evolving coronavirus protocols, 2 the Court will set the schedule in this case without holding a scheduling conference. 3 Accordingly, Pursuant to Federal Rule of Civil Procedure 16(b), this Court now sets a schedule 4 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 Plaintiff and any other witness confined in a prison on the condition that, at least 14 fourteen (14) days before such a deposition, Defendant(s) serve all parties with the 15 notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 16 participate in a properly noticed deposition could result in sanctions against Plaintiff, 17 including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule 18 of Civil Procedure 30(b)(4), the parties may take any deposition under this section by 19 video conference without a further motion or order of the Court. Due to security 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 concerns and institutional considerations not applicable to Defendant(s), Plaintiff must 2 seek 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 April 5, 2021, at 1:30 p.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 March 8, 2021 to file motions to 28 compel further discovery responses. No later than March 22, 2021, the responding 1 party may file response(s) to motion(s) to compel. The motion should include a copy 2 of 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 8. Plaintiff shall make arrangements with staff at his or her institution of confinement for 8 his or her attendance at the discovery and status conference. Plaintiff’s institution of 9 confinement shall make Plaintiff available for the conference at the date and time 10 indicated above. To the extent possible, prior to the conference defense counsel shall 11 confirm with Plaintiff’s institution of confinement that arrangements have been made 12 for Plaintiff’s attendance. The Clerk of Court shall mail a copy of this order to the 13 litigation coordinator at Plaintiff's institution of confinement. 14 II. PAGE LIMITS AND COURTESY COPIES 15 The parties are advised that unless prior leave of the Court is obtained before the filing 16 deadline,2 all moving and opposition briefs or legal memoranda shall not exceed twenty-five (25) 17 pages. Reply briefs by the moving party shall not exceed ten (10) pages. These page limits do 18 not include exhibits. 19 Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in 20 length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies 21 shall reflect the CM/ECF document numbers and pagination. 22 III. NON-EXPERT DISCOVERY DEADLINE 23 The deadline for serving non-expert discovery requests is April 6, 2021. 24 The deadline for the completion of all non-expert discovery is May 21, 2021. All non- 25 expert discovery must be provided by this date, including discovery compelled following the 26 discovery and status conference.3 27 2 Parties may seek leave by filing a short motion. 3 In light of the coronavirus (COVID-19) outbreak and the evolving coronavirus protocols, the Court is 28 providing the parties with additional time to complete non-expert discovery. 1 IV. EXPERT DISCOVERY DEADLINES 2 The deadline for all parties to serve their expert disclosures is December 17, 2021. 3 Parties have until January 20, 2022 to serve their rebuttal expert disclosures. The deadline for 4 the completion of all expert discovery is February 21, 2022. 5 V. EXHAUSTION MOTIONS 6 The deadline for Defendant(s) to present any challenge for failure to exhaust 7 administrative remedies is February 26, 2021. The exhaustion defense may be raised only by 8 filing a motion for summary judgment under Federal Rule of Civil Procedure 56. Failure to raise 9 the exhaustion defense by this deadline will result in waiver of the defense. See Albino v. Baca, 10 747 F.3d 1162, 1170 (9th Cir. 2014) (providing that the exhaustion question should be decided as 11 early as feasible). 12 VI. DISPOSITIVE MOTIONS DEADLINE 13 The deadline for filing dispositive motions (except for dispositive motions based on the 14 defense of failure to exhaust administrative remedies) is June 18, 2021. 15 If Defendant(s) file a motion for summary judgment, Defendant(s) shall simultaneously 16 provide Plaintiff with the notice and warning required by Rand v. Rowland, 154 F.3d 952 (9th 17 Cir. 1998). 18 VII. MAGISTRATE JUDGE JURISDICTION 19 The parties have not consented to the jurisdiction of a magistrate judge pursuant to 28 20 U.S.C. § 636(c). 21 VIII. TELEPHONIC TRIAL CONFIRMATION HEARING 22 A Telephonic Trial Confirmation Hearing is set for April 20, 2022 at 10:00a.m., in 23 Courtroom 2, before District Judge Anthony W. Ishii. Counsel for Defendant(s) is required to 24 arrange for the participation of Plaintiff in the Telephonic Trial Confirmation Hearing and to 25 initiate the telephonic hearing at (559) 499-5660. 26 In addition to the matters already required to be addressed in the pretrial statement in 27 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 28 order to obtain the attendance of witnesses. The procedures and requirements for making such a 1 showing are outlined in detail below. Plaintiff is advised that failure to comply with the 2 procedures set forth below may result in the preclusion of any or all witnesses named in 3 Plaintiff’s pretrial statement. 4 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 5 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 6 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 7 produce all of the evidence to prove Plaintiff’s case, whether that evidence is in the form of 8 exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, Plaintiff must follow 9 certain procedures to ensure that the witnesses will be at the trial and available to testify. 10 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 11 Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give 12 testimony cannot come to court unless this Court orders the warden or other custodian to permit 13 the witness to be transported to court. This Court will not issue such an order unless it is satisfied 14 that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual 15 knowledge of relevant facts. 16 A party intending to introduce the testimony of incarcerated witnesses who have agreed to 17 voluntarily attend the trial must serve and file a written motion for a court order requiring that 18 such witnesses be brought to court at the time of trial. The motion must: (1) state the name, 19 address, and prison identification number of each such witness; and (2) be accompanied by 20 declarations showing that each witness is willing to testify and that each witness has actual 21 knowledge of relevant facts. The motion should be entitled “Motion for Attendance of 22 Incarcerated Witnesses.” 23 The willingness of the prospective witness can be shown in one of two ways: (1) the party 24 him or herself can swear by declaration under penalty of perjury that the prospective witness has 25 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 26 which declaration the party must state when and where the prospective witness informed the party 27 of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 28 perjury by the prospective witness, in which the witness states that he or she is willing to testify 1 without being subpoenaed. 2 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 3 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 4 eyewitness or an ear-witness to the relevant facts, the party can swear by declaration under 5 penalty of perjury that the prospective witness has actual knowledge (e.g., if an incident occurred 6 in Plaintiff’s cell and, at the time, Plaintiff saw that a cellmate was present and observed the 7 incident, Plaintiff may swear to the cellmate’s ability to testify); or (2) the party can serve and file 8 a declaration signed under penalty of perjury by the prospective witness in which the witness 9 describes the relevant facts to which the prospective witness was an eye or ear witness. Whether 10 the declaration is made by the party or by the prospective witness, it must be specific about the 11 incident, when and where it occurred, who was present, and how the prospective witness 12 happened to be in a position to see or to hear what occurred at the time it occurred. 13 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 14 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who 15 refuse to testify voluntarily, the party should serve and file a written motion for a court order 16 requiring that such witnesses be brought to court at the time of trial. Such motion should be in 17 the form described above. In addition, the party must indicate in the motion that the incarcerated 18 witnesses are not willing to testify voluntarily. 19 The Court will review and rule on the motion(s) for attendance of incarcerated witnesses, 20 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 21 issue the writs necessary to cause the witnesses’ custodian(s) to bring the witnesses to court. 22 Motion(s) for the attendance of incarcerated witnesses, if any, must be filed on or before 23 February 18, 2022. Opposition(s), if any, must be filed on or before March 18, 2022. 24 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 25 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 26 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need 27 be sought or obtained from the Court. 28 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 1 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 2 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the 3 party seeking the witness’s presence must tender an appropriate sum of money for the witness. 4 Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness 5 fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 6 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 7 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 8 location of each unincarcerated witness. The Court will calculate the travel expense for each 9 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, 10 submit a money order made payable to the witness for the full amount of the witness’s travel 11 expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 12 unincarcerated witness by the United States Marshals Service unless the money order is tendered 13 to the Court. Because no statute authorizes the use of public funds for these expenses in civil 14 cases, the tendering of witness fees and travel expenses is required even if Plaintiff was granted 15 leave to proceed in forma pauperis. 16 If Plaintiff wishes to have the Marshals Service serve any unincarcerated witnesses who 17 refuse to testify voluntarily, Plaintiff must submit the money orders to the Court no later than 18 March 18, 2022. In order to ensure timely submission of the money orders, Plaintiff must notify 19 the Court of the names and locations of his witnesses, in compliance with the instructions above, 20 no later than February 18, 2022. 21 Plaintiff shall file and serve a pretrial statement as described in this order on or before 22 February 17, 2022. Defendant(s) shall file and serve a pretrial statement as described in this 23 order on or before March 21, 2022. 24 The parties are advised that failure to file pretrial statements as required by this order may 25 result in the imposition of appropriate sanctions, which may include dismissal of the action or 26 entry of default. 27 The Clerk of Court is directed to send Plaintiff a copy of Local Rule 281(b). 28 \\\ wOOe 4:£N UVM EOP TO NOMIC or POO Ve OY AU VE tl 1 | IX. TRIAL DATE 2 A jury trial is set for June 28, 2022, at 8:30 a.m., in Courtroom 2, before District Judge 3 | Anthony W. Ishii. 4] X. EFFECT OF THIS ORDER 5 This order represents the Court and the parties’ best estimated schedule to complete this 6 | case. Any party unable to comply with the dates outlined in this order shall immediately file an 7 | appropriate motion or stipulation identifying the requested modification(s). 8 The dates set in this order are considered to be firm and will not be modified absent a 9 | showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the 10 | civil case docket, this Court disfavors requests to modify established dates. 11 Failure to comply with this order may result in the imposition of sanctions. 12 B IT IS SO ORDERED. 14! Dated: _ September 29, 2020 [Jee Fey — 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 10