(PC) Turner v. Zepp ( 2021 )

1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 VINCENT TURNER, Case No. 1:20-cv-00184-AWI-EPG (PC) 6 Plaintiff, SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND PLAINTIFF 7 A COPY OF LOCAL RULE 281(b) 8 v. Exhaustion Motions: May 3, 2021 9 Motions to Compel: July 19, 2021 10 Responses to Motions ANDREW ZEPP, et al., To Compel: August 2, 2021 11 Defendant(s). Telephonic Discovery 12 and Status Conference: August 16, 2021 Time: 11:00 a.m. 13 Courtroom 10 (EPG) 14 Non-expert Discovery: October 1, 2021 15 Dispositive Motions: November 1, 2021 16 Expert Disclosures: May 2, 2022 17 18 Rebuttal Expert Disclosures: June 1, 2022 19 Plaintiff’s Pretrial 20 Statement: July 1, 2022 21 Defendant(s)’ Pretrial Statement: August 2, 2022 22 Telephonic Trial 23 Confirmation Hearing: September 1, 2022 Time: 10:00 a.m. 24 Courtroom 2 (AWI) 25 Jury Trial: November 1, 2022 Time: 8:30 a.m. 26 Courtroom 2 (AWI) 27 28 1 2 This Court conducted a scheduling conference on February 1, 2021. Plaintiff Vincent 3 Turner telephonically appeared on his own behalf. Defendants Andrew Zepp and Khaled A. 4 Tawansy did not appear and waived their right to participate in the scheduling conference.1 5 Pursuant to Federal Rule of Civil Procedure 16(b), this Court now sets a schedule for this action. 6 I. DISCOVERY PROCEDURES 7 The parties are now granted leave to serve discovery in addition to that provided as part of 8 initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall 9 proceed as follows: 10 1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil 11 Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed 12 with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that 13 discovery requests shall not be filed unless or until there is a proceeding in which the 14 document or proof of service is at issue). A party may serve on any other party no 15 more than 15 interrogatories, 15 requests for production of documents, and 15 requests 16 for admission. On motion, these limits may be increased for good cause. 17 2. Responses to written discovery requests shall be due forty-five (45) days after the 18 request is first served. Boilerplate objections are disfavored and may be summarily 19 overruled by the Court. Responses to document requests shall include all documents 20 within a party’s possession, custody, or control. Fed. R. Civ. P. 34(a)(1). Documents 21 are deemed within a party’s possession, custody, or control if the party has actual 22 possession, custody, or control thereof, or the legal right to obtain the property on 23 demand. 24 3. If any party or third party withholds a document on the basis of privilege, that party or 25 third party shall provide a privilege log to the requesting party identifying the date, 26 author, recipients, general subject matter, and basis of the privilege within thirty (30) 27 1 The Court is separately issuing orders to show cause regarding Defendants’ failure to appear at the mandatory 28 scheduling conference. 1 days after the date that responses are due. The privilege log shall simultaneously be 2 filed with the Court. Failure to provide and file a privilege log within this time 3 shall result in a waiver of the privilege. Additionally, if a party is claiming a right 4 to withhold witness statements and/or evidence gathered from investigation(s) 5 into the incident(s) at issue in the complaint based on the official information 6 privilege, the withholding party shall submit the withheld witness statements 7 and/or evidence to the Court for in camera review, along with an explanation of 8 why the witness statements and/or evidence is privileged.2 The witness statements 9 and/or evidence shall be Bates stamped, and mailed to Judge Grosjean at 2500 Tulare 10 Street, Sixth Floor, Fresno, CA 93721. The withholding party shall also file and serve 11 a notice that they have complied with this order. All other claims of privilege, 12 including claims of the official information privilege over information other than 13 witness statements and/or evidence gathered from investigation(s) into the incident(s) 14 at issue in the complaint, may be challenged via a motion to compel. 15 4. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose 16 Plaintiff and any other witness confined in a prison on the condition that, at least 17 fourteen (14) days before such a deposition, Defendant(s) serve all parties with the 18 notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 19 participate in a properly noticed deposition could result in sanctions against Plaintiff, 20 2 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 including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule 2 of Civil Procedure 30(b)(4), the parties may take any deposition under this section by 3 video conference without a further motion or order of the Court. Due to security 4 concerns and institutional considerations not applicable to Defendant(s), Plaintiff must 5 seek leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of 6 Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion 7 for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary. 8 5. With the Court’s permission, Plaintiff may serve third party subpoenas, including on 9 the California Department of Corrections and Rehabilitation and/or the Office of the 10 Inspector General, if Plaintiff seeks documents from entities that are not presently 11 defendants in this case. To issue a subpoena on these entities, or any other third 12 parties, Plaintiff must file a request for the issuance of a subpoena duces tecum with 13 the Court. If the Court approves the request, it may issue Plaintiff a subpoena duces 14 tecum, commanding the production of documents from a non-party, and may 15 command service of the subpoena by the United States Marshals Service. Fed. R. Civ. 16 P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request 17 only if the documents sought from the non-party are not equally available to Plaintiff 18 and are not obtainable from Defendant(s) through a Rule 34 request for production of 19 documents. In any request for a subpoena, Plaintiff must: (1) identify with specificity 20 the documents sought and from whom; and (2) make a showing in the request that the 21 records are only obtainable through a third party. The documents requested must also 22 fall within the scope of discovery allowed in this action. See Fed. R. Civ. P. 26(b)(1). 23 6. The parties are required to act in good faith during the course of discovery and the 24 failure to do so may result in the payment of expenses pursuant to Federal Rule of 25 Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal 26 Rules of Civil Procedure or the Local Rules. 27 7. A discovery and status conference is set for August 16, 2021, at 11:00 a.m., before 28 Magistrate Judge Erica P. Grosjean. Parties have leave to appear by phone. To join 1 the conference, each party is directed to call the toll-free number (888) 251−2909 and 2 use Access Code 1024453. The parties have until July 19, 2021 to file motions to 3 compel further discovery responses. No later than August 2, 2021, the responding 4 party may file response(s) to motion(s) to compel. The motion should include a copy 5 of the request(s) and any response to the request(s) at issue. Unless there is a need for 6 discovery prior to the conference, motions to compel will not be considered until the 7 conference. Motions to compel will not be permitted after the conference absent good 8 cause. The parties should be prepared to address all discovery disputes and all 9 pending motions at the conference. 10 8. Plaintiff shall make arrangements with staff at his or her institution of confinement for 11 his or her attendance at the discovery and status conference. Plaintiff’s institution of 12 confinement shall make Plaintiff available for the conference at the date and time 13 indicated above. To the extent possible, prior to the conference defense counsel shall 14 confirm with Plaintiff’s institution of confinement that arrangements have been made 15 for Plaintiff’s attendance. 16 II. PAGE LIMITS AND COURTESY COPIES 17 The parties are advised that unless prior leave of the Court is obtained before the filing 18 deadline,3 all moving and opposition briefs or legal memoranda shall not exceed twenty-five (25) 19 pages. Reply briefs by the moving party shall not exceed ten (10) pages. These page limits do 20 not include exhibits. 21 Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in 22 length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies 23 shall reflect the CM/ECF document numbers and pagination. 24 III. NON-EXPERT DISCOVERY DEADLINE 25 The deadline for the completion of all non-expert discovery is October 1, 2021. All non- 26 expert discovery must be provided by this date, including discovery compelled following the 27 discovery and status conference. 28 3 Parties may seek leave by filing a short motion. 1 IV. EXPERT DISCOVERY DEADLINES 2 The deadline for all parties to serve their expert disclosures is May 2, 2022. Parties have 3 until June 1, 2022 to serve their rebuttal expert disclosures. 4 V. EXHAUSTION MOTIONS 5 The deadline for Defendant(s) to present any challenge for failure to exhaust 6 administrative remedies is May 3, 2021. The exhaustion defense may be raised only by filing a 7 motion for summary judgment under Federal Rule of Civil Procedure 56. Failure to raise the 8 exhaustion defense by this deadline will result in waiver of the defense. See Albino v. Baca, 747 9 F.3d 1162, 1170 (9th Cir. 2014) (providing that the exhaustion question should be decided as 10 early as feasible). 11 VI. DISPOSITIVE MOTIONS DEADLINE 12 The deadline for filing dispositive motions (except for dispositive motions based on the 13 defense of failure to exhaust administrative remedies) is November 1, 2021. 14 If Defendant(s) file a motion for summary judgment, Defendant(s) shall simultaneously 15 provide Plaintiff with the notice and warning required by Rand v. Rowland, 154 F.3d 952 (9th 16 Cir. 1998). 17 VII. MAGISTRATE JUDGE JURISDICTION 18 The parties have not consented to the jurisdiction of a magistrate judge pursuant to 28 19 U.S.C. § 636(c). 20 VIII. TELEPHONIC TRIAL CONFIRMATION HEARING 21 A Telephonic Trial Confirmation Hearing is set for September 1, 2022, at 10:00 a.m., in 22 Courtroom 2, before District Judge Anthony W. Ishii. Counsel for Defendant(s) is required to 23 arrange for the participation of Plaintiff in the Telephonic Trial Confirmation Hearing and to 24 initiate the telephonic hearing at (559) 499-5660. 25 In addition to the matters already required to be addressed in the pretrial statement in 26 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 27 order to obtain the attendance of witnesses. The procedures and requirements for making such a 28 showing are outlined in detail below. Plaintiff is advised that failure to comply with the 1 procedures set forth below may result in the preclusion of any or all witnesses named in 2 Plaintiff’s pretrial statement. 3 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 4 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 5 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 6 produce all of the evidence to prove Plaintiff’s case, whether that evidence is in the form of 7 exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, Plaintiff must follow 8 certain procedures to ensure that the witnesses will be at the trial and available to testify. 9 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 10 Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give 11 testimony cannot come to court unless this Court orders the warden or other custodian to permit 12 the witness to be transported to court. This Court will not issue such an order unless it is satisfied 13 that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual 14 knowledge of relevant facts. 15 A party intending to introduce the testimony of incarcerated witnesses who have agreed to 16 voluntarily attend the trial must serve and file a written motion for a court order requiring that 17 such witnesses be brought to court at the time of trial. The motion must: (1) state the name, 18 address, and prison identification number of each such witness; and (2) be accompanied by 19 declarations showing that each witness is willing to testify and that each witness has actual 20 knowledge of relevant facts. The motion should be entitled “Motion for Attendance of 21 Incarcerated Witnesses.” 22 The willingness of the prospective witness can be shown in one of two ways: (1) the party 23 him or herself can swear by declaration under penalty of perjury that the prospective witness has 24 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 25 which declaration the party must state when and where the prospective witness informed the party 26 of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 27 perjury by the prospective witness, in which the witness states that he or she is willing to testify 28 without being subpoenaed. 1 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 2 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 3 eyewitness or an ear-witness to the relevant facts, the party can swear by declaration under 4 penalty of perjury that the prospective witness has actual knowledge (e.g., if an incident occurred 5 in Plaintiff’s cell and, at the time, Plaintiff saw that a cellmate was present and observed the 6 incident, Plaintiff may swear to the cellmate’s ability to testify); or (2) the party can serve and file 7 a declaration signed under penalty of perjury by the prospective witness in which the witness 8 describes the relevant facts to which the prospective witness was an eye or ear witness. Whether 9 the declaration is made by the party or by the prospective witness, it must be specific about the 10 incident, when and where it occurred, who was present, and how the prospective witness 11 happened to be in a position to see or to hear what occurred at the time it occurred. 12 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 13 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who 14 refuse to testify voluntarily, the party should serve and file a written motion for a court order 15 requiring that such witnesses be brought to court at the time of trial. Such motion should be in 16 the form described above. In addition, the party must indicate in the motion that the incarcerated 17 witnesses are not willing to testify voluntarily. 18 The Court will review and rule on the motion(s) for attendance of incarcerated witnesses, 19 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 20 issue the writs necessary to cause the witnesses’ custodian(s) to bring the witnesses to court. 21 Motion(s) for the attendance of incarcerated witnesses, if any, must be filed on or before 22 July 1, 2022. Opposition(s), if any, must be filed on or before August 2, 2022. 23 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 24 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 25 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need 26 be sought or obtained from the Court. 27 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 28 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 1 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the 2 party seeking the witness’s presence must tender an appropriate sum of money for the witness. 3 Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness 4 fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 5 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 6 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 7 location of each unincarcerated witness. The Court will calculate the travel expense for each 8 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, 9 submit a money order made payable to the witness for the full amount of the witness’s travel 10 expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 11 unincarcerated witness by the United States Marshals Service unless the money order is tendered 12 to the Court. Because no statute authorizes the use of public funds for these expenses in civil 13 cases, the tendering of witness fees and travel expenses is required even if Plaintiff was granted 14 leave to proceed in forma pauperis. 15 If Plaintiff wishes to have the Marshals Service serve any unincarcerated witnesses who 16 refuse to testify voluntarily, Plaintiff must submit the money orders to the Court no later than 17 August 2, 2022. In order to ensure timely submission of the money orders, Plaintiff must notify 18 the Court of the names and locations of his or her witnesses, in compliance with the instructions 19 above, no later than July 1, 2022. 20 Plaintiff shall file and serve a pretrial statement as described in this order on or before 21 July 1, 2022. Defendant(s) shall file and serve a pretrial statement as described in this order on 22 or before August 2, 2022. 23 The parties are advised that failure to file pretrial statements as required by this order may 24 result in the imposition of appropriate sanctions, which may include dismissal of the action or 25 entry of default. 26 The Clerk of Court is directed to send Plaintiff a copy of Local Rule 281(b). 27 /// 28 /// 1 | IX. TRIAL DATE 2 A 1-3 day jury trial is set for November 1, 2022, at 8:30 a.m., in Courtroom 2, before 3 | District Judge 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: _ February 1, 2021 [sf ey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 10