(PC) Shepard v. Borum ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAMONT SHEPARD, No. 1:18-cv-00277-ADA-HBK (PC) 12 Plaintiff, FINAL PRETRIAL ORDER 13 v. Deadlines: 14 M. BORUM, J. ACEBEDO, Proposed Jury Instructions: March 2, 2023 15 Defendants. Objections to Proposed Jury Instructions: March 7, 2023 16 Motions in Limine Filing: Feb. 28, 2023 17 Oppositions to Motions in Limine: March 7, 2023 18 19 Trial Submissions: Feb. 28, 2023 (misc) Jury Trial: March 14, 2022 8:30 am (3-4 days) 20 Court Room 1; jury trial; in person 21 22 On October 11, 2022, the Court conducted a pretrial conference in this action. Plaintiff 23 Lamont Shepard appeared pro se via Zoom; Deputy Attorney Brian S. Chan appeared via Zoom 24 as counsel for Defendants Borum and Acebedo. Having considered the parties’ pretrial 25 statements, the Court issues this tentative pretrial order. 26 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 27 action brought pursuant to 42 U.S.C. § 1983 against Defendants Borum and Acebedo. Plaintiff 28 claims that Defendants Borum and Acebedo violated the First Amendment and retaliated against 1 him by placing him on C-Status for filing complaints against staff and correctional officers. 2 At the pretrial conference, Plaintiff and Defendants indicated a willingness to meet and 3 confer before the scheduled trial. If parties desire a final settlement conference, they are 4 instructed to contact the chambers of the assigned magistrate judge or file a notice requesting to 5 schedule final settlement conference before the assigned magistrate judge. 6 I. JURISDICTION/VENUE 7 Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343. Jurisdiction is not contested. 8 The events at issue took place in Delano, California. Accordingly, venue is proper pursuant to 28 9 U.S.C. § 1391(b). Venue is also not contested. 10 II. JURY 11 Defendants demanded a jury trial (Doc. Nos. 19, 108) The jury will consist of seven 12 jurors. 13 III. UNDISPUTED FACTS 14 a. Plaintiff Lamont Shepard (K-29682) is a California state prisoner. 15 b. At the time of the events, Defendants M. Borum and J. Acebedo worked at Kern 16 Valley State Prison. Defendant M. Borum was employed as a Correctional Counselor 17 I and Defendant J. Acebedo was employed as a Correctional Counselor II. 18 c. The events occurred at Kern Valley State Prison in Delano, California. 19 d. At some point in June 2016, Plaintiff had a classification hearing and both Defendants 20 Borum and Acebedo participated in the hearing. 21 e. Plaintiff reportedly had three Rules Violation Reports, and as a result of the 22 classification hearing, Plaintiff was placed on “C-Status.”1 23 IV. DISPUTED FACTUAL ISSUES 24 a. Whether Defendant Borum told Plaintiff on May 24, 2016, that Plaintiff would be 25 placed on C-Status for being a “legal beagle.” 26 1 Plaintiff also refers to his classification as C/C Status. Upon review of the various pleadings, 27 including parties pretrial statements, the Court finds that the parties are referring to the same classification status when they say either “C-Status” or “C/C Status.” For the sake of uniformity, 28 the Court will refer to Plaintiff’s Classification status as “C-Status.” 1 b. Whether Defendants Borum and Acebedo were aware of Plaintiff’s history of filing 2 administrative grievances or complaints with the courts. 3 c. Whether Defendants Acebedo and Borum’s actions during the June 2016 classification 4 committee hearing were motivated by Plaintiff’s litigation or administrative grievance- 5 filing history. 6 d. Whether Defendants Acebedo or Borum ever indicated to Plaintiff during the June 7 2016 classification committee hearing that they were placing Plaintiff on C-Status 8 because of his litigation or administrative grievance-filing history. 9 e. Whether Defendants Acebedo or Borum’s actions during the events in question served 10 a legitimate correctional goal, including the legitimate correctional goal. 11 f. Whether Plaintiff suffered any damages as a result of Defendant’s actions. 12 g. Whether Defendants Acebedo or Borum acted with the required mindset for imposing 13 punitive damages against them. 14 V. DISPUTED LEGAL ISSUES 15 None listed. 16 VI. DISPUTED EVIDENTIARY ISSUES 17 a. Evidentiary Issues -- Defendants Acebedo and Borum 18 i. Whether evidence concerning any of Plaintiff’s claims that have been 19 dismissed is admissible for any purpose. 20 ii. Whether Plaintiff should be able to offer any evidence regarding Defendants’ 21 involvement in other lawsuits, claims, inmate grievances, or incidents alleging 22 misconduct. 23 iii. Whether Plaintiff should be able to offer evidence or testimony regarding any 24 settlement discussions the parties may have had. 25 iv. Whether Plaintiff should be able to offer evidence that the State may pay the 26 judgment or reimburse Defendants in the event a judgment is rendered against 27 them. 28 v. Whether Plaintiff should be able to offer any evidence of punitive damages. 1 vi. Whether the abstracts of judgment or other evidence of felony convictions for 2 Plaintiff or any incarcerated witnesses are admissible for impeachment 3 purposes. 4 vii. Whether any written statements by inmate witnesses are admissible. 5 b. Evidentiary Issues – Plaintiff 6 i. Whether Defendants knew they were retaliating against Plaintiff. 7 ii. Whether Defendants knew Rules Violation Report Log Number FA-15-08- 8 077R was outdated. 9 VII. MOTIONS IN LIMINE 10 The parties have not yet filed motions in limine. The purpose of a motion in limine is to 11 establish in advance of the trial that certain evidence should not be offered at trial. “Although the 12 Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed 13 pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United 14 States, 469 U.S. 38, 40 n. 2 (1984); Jonasson v. Lutheran Child and Family Services, 115 F. 3d 15 436, 440 (7th Cir. 1997). The Court will grant a motion in limine, and thereby bar use of the 16 evidence in question, only if the moving party establishes that the evidence clearly is not 17 admissible for any valid purpose. Id. The Court does not encourage the filing of motions in 18 limine unless they are addressed to issues that can realistically be resolved by the court prior to 19 trial and without reference to the other evidence which will be introduced by the parties at trial. 20 In advance of filing any motion in limine, counsel shall meet and confer to determine 21 whether they can resolve any disputes and avoid filing motions in limine. Along with their 22 motions in limine, the parties shall file a certification demonstrating counsel have in good faith 23 met and conferred and attempted to resolve the dispute. Failure to provide the certification may 24 result in the Court refusing to entertain the motion. 25 Any motions in limine the parties intend to file must be filed with the Court no later than 26 February 28, 2023. The motion must clearly identify the nature of the evidence that the moving 27 party seeks to prohibit the other side from offering at trial. Any opposition to the motion must be 28 served on the other party and filed with the Court no later than March 7, 2023. Upon receipt of 1 any opposition briefs, the Court will notify the parties if a reply brief is necessary and whether it 2 will hear argument on any motions in limine prior to the first day of trial. As such, parties shall 3 not file any reply briefs without Court approval. The parties are reminded they may still object to 4 the introduction of evidence during trial. 5 VIII. SPECIAL FACTUAL INFORMATION 6 Special factual information pursuant to Local Rule 281(b)(6) is not applicable to this 7 action. 8 IX. RELIEF SOUGHT 9 a. Plaintiff 10 i. Plaintiff seeks attorneys’ fees, court costs, $350,000.00 in punitive 11 damages requesting each defendant pay half, and $20,000.00 in general 12 damages from each defendant. 13 b. Defendants 14 i. Defendants Acebedo and Borum seek judgment in their favor, award of 15 costs, and other relief the Court deems proper. 16 X. POINTS OF LAW 17 a. 42 U.S.C. § 1983 18 The Civil Rights Act under which this action was filed provides: 19 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 20 subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any 21 rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or 22 other propre proceeding for redress . . . . 23 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 24 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 25 U.S. 386, 393–94 (1989) quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 26 Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 27 730, 734 (9th Cir. 2012). 28 /// 1 Under 42 U.S.C. § 1983, a plaintiff is required to prove that the defendant (1) acted under 2 color of state law and (2) deprived him of federally protected constitutional rights. 42 U.S.C. § 3 1983; West v. Atkins, 487 U.S. 42 (1988). A plaintiff must demonstrate that the defendant 4 personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th 5 Cir. 2002). There is no respondeat superior liability under Section 1983, and the defendant is 6 only liable for his own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948-49 7 (2009); see also Monell v. Dept. of Social Services, 436 U.S. 658, 691-92 (1978); See Taylor v. 8 List, 880 F.2d 1040, 1045 (9th Cir. 1989). 9 b. First Amendment Retaliation 10 Under the First Amendment, prison officials may not retaliate against prisoners for 11 engaging in protected conduct, such as initiating litigation or filing administrative grievances. 12 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). A plaintiff must prove five basic 13 elements. Id. 14 First, Plaintiff must show that a state actor took an adverse action against him. Id. An 15 adverse action need not be explicit or specific, or an independent constitutional violation. 16 Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009); Watison v. Carter, 668 F.3d 1108, 1114 17 (9th Cir. 2012). Rather, “the mere threat of harm can be an adverse action, regardless of whether 18 it is carried out because the threat itself can have a chilling effect.” Brodheim, 584 F.3d at 1270 19 (emphasis in original). Second, Plaintiff must show that he was engaging in conduct that was 20 protected, such as the filing of a grievance. Rhodes, 408 F.3d at 568. Third, he must show that his 21 protected conduct was the “substantial,” or “motivating factor behind defendants’ taking an 22 adverse action against him.’” Brodheim, 584 F.3d at 1271. Fourth, Plaintiff must prove that the 23 action Defendants took chilled the exercise of his First Amendment rights. Id. An objective 24 standard governs this chilling inquiry; a plaintiff does not need to show that “‘his speech was 25 actually inhibited or suppressed,’” but instead, that “the adverse action at issue ‘would chill or 26 silence a person of ordinary firmness from future First Amendment activities.’” Rhodes, 408 F.3d 27 at 568-69 (quoting Mendocino Envtl. Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 28 1999)). Fifth, Plaintiff must show that the adverse action “did not reasonably advance a legitimate 1 correctional goal.” Id. at 568. 2 c. Punitive Damages 3 Plaintiff has the burden of proving what, if any, punitive damages should be awarded by a 4 preponderance of the evidence. NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS § 5.5 (2018). 5 The jury must find that Defendants’ conduct was “motivated by evil motive or intent, or . . . 6 involves reckless or callous indifference to the federally protected rights of others.” Smith v. 7 Wade, 461 U.S. 30, 56 (1986); Larez v. Holcomb, 16 F.3d 1513, 1518 (9th Cir. 1994). 8 d. Compensatory Damages 9 Under 42 U.S.C. § 1997e(e), an inmate may not recover compensatory damages for 10 mental or emotional injuries suffered while in custody without a prior showing of physical 11 injury. However, in Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002), the Ninth Circuit held that to 12 the extent a plaintiff has actionable claims premised on constitutional violations, his claims are 13 not limited by § 1997e(e). Accordingly, district courts in the Ninth Circuit consistently 14 concluded that if a plaintiff states a constitutional claim, as opposed to one for mental or 15 emotional injuries, the physical injury requirement of § 1997e(e) does not bar the award of 16 compensatory damages. See e.g., Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 776-77 (N.D. Cal. 17 2008) (“§ 1997e(e) does not apply to claims for compensatory damages not premised on 18 emotional injury . . . [t]he fact that Cockcroft never suffered any physical injury as a result of 19 [defendant] Linfor's alleged acts may make his Eighth Amendment claim of very little financial 20 value but does not make the claim non-existent.”); Low v. Stanton, WL 234859, *4 (E.D. Cal. 21 Jan. 14, 2010) (finding that plaintiff may recover compensatory damages for the violation of 22 his Fourteenth Amendment rights). 23 e. Qualified Immunity 24 Qualified immunity applies when an official’s conduct does not violate clearly established 25 statutory or constitutional rights of which a reasonable person would have known. White v. 26 Pauly, 137 S. Ct. 548, 551 (2017). Officers are entitled to qualified immunity under Section 1983 27 unless (1) the officers violate a federal statutory or constitutional right, and (2) the unlawfulness 28 of their conduct was “clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 1 577, 589 (2018); White, 137 S. Ct. at 551. 2 “Clearly established” means that the statutory or constitutional question was “beyond 3 debate,” such that every reasonable official would understand that what he is doing is unlawful. 4 See Wesby, 138 S. Ct. at 589; Vos v. City of Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). 5 This is a “demanding standard” that protects “all but the plainly incompetent or those who 6 knowingly violate the law.” Wesby, 138 S. Ct. at 589 (citing Malley v. Briggs, 475 U.S. 335, 341 7 (1986)). Thus, to be “clearly established,” a rule must be dictated by controlling authority or by a 8 robust consensus of cases of persuasive authority. Wesby, 138 S. Ct. at 589. 9 f. Impeachment by Evidence of Prior Felony Convictions 10 Federal Rule of Evidence 609(a)(1)(A) provides that evidence of a conviction for a crime 11 punishable for more than one year is admissible, subject to Rule 403, in a civil case to attack a 12 witness’s character for truthfulness. Fed. R. Evid. 609(a)(1)(A). Additionally, any incarcerated 13 witness who testifies is also subject to impeachment under Rule 609. Evidence of a conviction 14 under this rule is not admissible if a period of more than ten years has elapsed since the date of 15 the conviction or release from confinement from it. Fed. R. Evid. 609(b). 16 ANY CAUSES OF ACTION OR AFFIRMATIVE DEFENSES NOT EXPLICITLY 17 LISTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW AT THE TIME IT 18 BECOMES FINAL ARE DISMISSED AND DEEMED WAIVED. 19 XI. ABANDONED ISSUES 20 None. 21 XII. WITNESSES 22 Plaintiff’s witnesses shall be those listed in Attachment A. Defendant’s witnesses shall be 23 those listed in Attachment B. Each party may call any witnesses designated by the other. 24 The Court does not allow undisclosed witnesses to be called for any purpose, 25 including impeachment or rebuttal, unless they meet the following criteria: 26 a. The party offering the witness demonstrates that the witness is for the purpose of 27 rebutting evidence that could not be reasonably anticipated at the pretrial conference; 28 or 1 b. The witness was discovered after the pretrial conference and the proffering party 2 makes the showing required in Paragraph C, below. 3 c. Upon the post pretrial discovery of any witness a party wishes to present at trial, the 4 party shall promptly inform the Court and opposing parties of the existence of the 5 unlisted witness so the Court may consider whether said witness shall be permitted to 6 testify at trial. The witness will not be permitted unless: 7 i. The witness could not have reasonably been discovered prior to the discovery 8 cutoff; 9 ii. The Court and opposing parties were promptly notified upon discovery of the 10 witness; 11 iii. If time permitted, the party proffered the witness for deposition; and 12 iv. If time did not permit, a reasonable summary of the witness’s testimony was 13 provided to opposing parties. 14 XIII. EXHIBITS, SCHEDULES, AND SUMMARIES 15 a. Exhibit Binders 16 i. Plaintiff’s exhibits are listed in Attachment C. Defendant’s exhibits are listed 17 in Attachment D. The parties must prepare three (3) separate exhibit binders for 18 use by the court at trial, with a side tab identifying each exhibit in accordance 19 with the following specifications: 20 1. Plaintiff’s exhibits shall be pre-marked with the prefix “PX” and 21 numbered sequentially beginning with 100 (e.g., PX-100, PX-101, 22 etc.). 23 2. Defendant’s exhibits shall be pre-marked with the prefix “DX” and 24 numbered sequentially beginning with 200 (e.g., DX-200, DX-201, 25 etc.) and shall be separated by tabs. 26 3. Joint exhibits shall be pre-marked with the prefix “JT” and numbered 27 sequentially beginning with 1 (e.g., JT-1, JT-2, etc.), and Defendant’s 28 counsel shall submit the original and two (2) copies of the joint trial 1 exhibits, with exhibit lists and separated by tabs. 2 4. Exhibits that are multiple pages shall be marked with page numbers in 3 addition to the prefix and exhibit number, on each page of the exhibit 4 (e.g., PX-100, page 1 of 2, PX-100, page 2 of 2, etc.). 5 5. Each binder shall have an identification label on the front and spine. 6 The parties shall submit these to Courtroom Deputy, Mamie Hernandez, no later 7 than March 9, 2023. 8 b. Exchange of Trial Exhibits 9 i. The parties shall also serve one (1) copy of all trial exhibits, along with their 10 exhibit list, on each other no later than February 14, 2023, and any objections 11 thereto are due no later than February 28, 2023. This includes any 12 demonstrative evidence the parties intend to use. 13 c. Use of Undisclosed Exhibits 14 i. The court does not allow the use of undisclosed exhibits for any purpose, 15 including impeachment or rebuttal, unless they meet the following 16 criteria: 17 1. The party proffering the exhibit demonstrates that the exhibit is for the 18 purpose of rebutting evidence that could not have been reasonably 19 anticipated, or 20 2. The exhibit was discovered after the issuance of this order and the 21 proffering party makes the showing required in paragraph a, below. 22 a. Upon the discovery of exhibits after the discovery cutoff, a 23 party shall promptly inform the court and opposing parties of 24 the existence of such exhibits by filing a notice on the docket so 25 that the court may consider their admissibility at trial. The 26 exhibits will not be received unless the proffering party 27 demonstrates: 28 i. The exhibits could not have reasonably been discovered 1 earlier; 2 ii. The court and the opposing parties were promptly 3 informed of their existence; and 4 iii. The proffering party forwarded a copy of the exhibits (if 5 physically possible) to the opposing party. If the exhibits 6 may not be copied, the proffering party must show that 7 it has made the exhibits reasonably available for 8 inspection. 9 XIV. DISCOVERY DOCUMENTS2 10 a. The parties must lodge the sealed original copy of any deposition transcript to be used 11 at trial with the Clerk of Court no later than February 28, 2023. 12 b. The following is a list of discovery documents – portions of depositions, answers to 13 interrogatories, and responses to requests for admissions – that the parties expect to 14 offer at trial. NO DISCOVERY DOCUMENT, OTHER THAN THOSE 15 LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS THE PARTIES 16 STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE 17 MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); 18 Local Rule 281(b)(12). 19 c. Plaintiff’s Proposed Discovery to be Proffered at Trial 20 i. Plaintiff’s deposition taken by Defendants 21 ii. Defendants’ answer to interrogatories 22 iii. Defendants’ admissions 23 d. Defendants’ Proposed Discovery to be Proffered at Trial 24 i. Transcript from Plaintiff’s deposition 25 /// 26 27 2 The parties SHALL identify to their opponent the specific documents they intend to use at trial. Vaguely identifying documents as “discovery responses” or “responses to interrogatories,” is insufficient unless the 28 documents will be used only for impeachment. 1 XV. FURTHER DISCOVERY OR MOTIONS 2 Plaintiff and Defendants state that no further discovery is necessary. Defendants intend to 3 file motions in limine. If appropriate, Defendant may move for judgment as a matter of law under 4 Federal Rule of Civil Procedure 50 at the close of Plaintiff’s case in chief and before the case is 5 submitted to the jury. Furthermore, Defendants intend to file specific objections to Plaintiff’s 6 exhibits once parties exchange exhibits. Law and Motion and Discovery are closed in this case. 7 There is no indication in Plaintiff’s pretrial statement that he intends to file any additional 8 motions. 9 XVI. STIPULATIONS 10 The parties have not agreed to any stipulations. 11 XVII. AMENDMENTS/DISMISSALS 12 None. 13 XVIII. SETTLEMENT 14 The parties participated in a settlement conference on January 25, 2022, before United 15 States Magistrate Judge Erica P. Grosjean and reached an impasse. The parties participated in a 16 second settlement conference on March 10, 2022, before United States Magistrate Judge Dennis 17 M. Cota and reached an impasse. 18 XIX. JOINT STATEMENT OF THE CASE 19 The Court has drafted the following neutral statement of the case to be read to the 20 prospective jurors: 21 Plaintiff claims that while he was incarcerated as a state prisoner, Defendant Borum told him that he was being placed on C-status for 22 being a legal beagle, which is also known as an inmate who files complaints against staff and civil rights complaints against 23 correctional officers. Further, Plaintiff claims in June 2016, he appeared before a committee that consisted of Defendants Acebedo 24 and Borum and was incorrectly placed on C-Status for three Rules Violations Report. Plaintiff claims Defendants Acebedo and Bourm 25 incorrectly placed him on C-Status to punish him for being a legal beagle. Finally, Plaintiff alleges that Defendant Acebedo, who is 26 Defendant Borum’s supervisor was complicit in Defendant Borum’s actions, should have corrected them, and knew that Defendant 27 Borum was retaliating against plaintiff for being a legal beagle. Defendants Acebedo and Borum deny that they retaliated against 28 Plaintiff. 1 The parties are directed to raise any objection to this neutral statement of the case in any 2 objections they file to this tentative Pretrial Order. 3 XX. SEPARATE TRIAL OF ISSUES 4 There will be no separate trial of issues in this action. However, as stated at the pretrial 5 conference, the Court will bifurcate the trial with respect to the amount of punitive damages, if 6 necessary. Should a jury find punitive liability in the first phase of the trial, the trial will proceed 7 to a second phase which will consist of any evidence and argument with respect to the appropriate 8 amount of punitive damages. The parties may not present evidence regarding the amount of 9 punitive damages until the second phase of the trial. 10 XXI. IMPARTIAL EXPERTS/LIMITATION OF EXPERTS 11 None. 12 XXII. ATTORNEYS’ FEES 13 Plaintiff, who is proceeding pro se, is not entitled to attorney’s fees. Kay v. Ehrler, 499 14 U.S. 432, 435 (1991). 15 Defendants Acebedo and Borum will seek an award of attorney’s fees as appropriate as a 16 post-trial motion. 17 XXIII. TRIAL PROTECTIVE ORDER AND REDACTION OF TRIAL EXHIBITS 18 Special handling of prison records and photographs may be appropriate as to any 19 confidential information where disclosure may compromise the safety and security of the 20 institution, staff, or other inmates. 21 If Defendants are required to disclose information concerning their financial status, they 22 will request that the Court issue a protective order concerning this information, under Local Rule 23 141.1(b)(2). 24 Pursuant to the Court’s policy, at the end of the trial, the Court will return all exhibits to 25 their proffers to be retained during the pendency of any appeals. 26 XXIV. MISCELLANEOUS 27 None. 28 /// 1 XXV. ESTIMATED TIME OF TRIAL/TRIAL DATE 2 Jury trial is set for March 14, 2023, at 8:30 a.m. in Courtroom 1 before the Honorable 3 Ana de Alba. Trial is anticipated to last three to four court days. The parties are directed to Judge 4 de Alba’s standard procedures available on her webpage on the court’s website. Counsel is 5 directed to call Mamie Hernandez, courtroom deputy, at (559) 499-5958, one week prior to trial 6 to ascertain the status of the trial date. 7 XXVI. PROPOSED JURY VOIR DIRE AND PROPOSED JURY INSTRUCTIONS 8 a. Proposed Jury Voir Dire 9 i. The parties shall file any proposed jury voir dire by March 7, 2023. Each 10 party will be limited to thirty minutes of jury voir dire, unless they show good 11 cause for additional time. 12 b. Proposed Jury Instructions 13 i. The Court directs the parties to meet and confer, if possible, to generate a joint 14 set of jury instructions and verdict forms. The parties shall file any such joint 15 set of instructions by March 2, 2023, identified as “Joint Jury Instructions and 16 Verdicts.” Defendant shall file proposed jury instructions as provided in Local 17 Rule 163 by March 2, 2023. Plaintiff is not required to file proposed jury 18 instructions, but if he wishes to do so, he must file them by March 2, 2023. 19 ii. All jury instructions shall adhere to the following: 20 1. The instruction must state the party submitting the instructions. 21 2. The number of the proposed instruction in sequence. 22 3. A brief title for the instruction describing the subject matter. 23 4. The text of the instruction. 24 5. The legal authority supporting the instruction. 25 6. The parties shall, by italics or underlining, designate any modification 26 from statutory or case authority, or any pattern or form instruction, or 27 any other source of pattern instructions. 28 7. The parties must specifically state the modification made to the original 1 form instruction and the legal authority supporting the modification. 2 8. All blanks in form instructions should be completed and all brackets 3 removed. 4 9. Defendant shall e-mail a copy of all proposed jury instructions, 5 whether agreed or disputed, as a Word document to 6 adaorders@caed.uscourts.gov no later than March 2, 2023. 7 iii. The parties shall use Ninth Circuit Model Civil Jury Instructions to the extent 8 possible. Otherwise, BAJI or CACI instructions shall be used where the 9 subject of the instruction is covered by BAJI or CACI. All instructions shall be 10 short, concise, understandable, neutral, and accurate statements of the law. 11 Argumentative or formula instructions will not be given and must not be 12 submitted. Quotations from legal authorities without reference to the issues at 13 hand are unacceptable. 14 c. Objections to proposed jury instructions 15 a. The Parties must file any objections to proposed jury instructions by March 7, 16 2023. Each objection shall identify the challenged instruction and shall provide a 17 concise explanation of the basis for the objection along with citation of authority. 18 When applicable, the objecting party shall submit an alternative proposed 19 instruction on the issue or identify which of his or her own proposed instructions 20 covers the subject. 21 XXVII. TRIAL BRIEFS 22 The parties are relieved of their obligation under Local Rule 285 to file a trial brief. If the 23 parties wish to submit a trial brief, they must do so by Feb. 28, 2023. 24 XXVIII. VERDICT FORMS 25 The court will prepare the verdict form, which the parties will have the opportunity to 26 review on the morning of trial. If the parties wish to submit a proposed verdict form, they must do 27 so on or before March 2, 2023. 28 /// 1 | XXIX. OBJECTIONS TO PRETRIAL ORDER 2 a. Written objections to the pretrial order, if any, must be filed within 10 days from the 3 date of service of this order. Such objections shall specify the requested modifications, 4 corrections, additions, or deletions. 5 | XXX. COMPLIANCE WITH PRETRIAL ORDER 6 Strict compliance with this pretrial order and its requirements is mandatory. The Court 7 | will enforce the requirements of this pretrial order, and counsel and parties are subject to 8 | sanctions for failure to comply fully with this order and its requirements. The Court will modify 9 | the pretrial order “only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). The Court 10 | ADMONISHES the parties and counsel to obey the Federal Rules of Civil Procedure, the Local 11 | Rules, and the Court’s orders. Failure to do so will subject the parties and/or counsel to sanctions 12 | as the Court deems appropriate. 13 14 15 | IT IS SO ORDERED. 16 Dated: _ October 14, 2022 UNITED $TATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 16 1 ATTACHMENT A: Plaintiff’s Witnesses 2 Individual Fact v. Expert Contact Information 3 1. Lamont Shepard, Fact Lamont Shepard, K-29682 Plaintiff CALIFORNIA STATE PRISON, 4 CORCORAN (3476) P.O. BOX 3476 5 CORCORAN, CA 93212-3476 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ATTACHMENT B: Defendants’ Witnesses 2 Individual Fact v. Expert Contact Information 3 1. J. Acebedo Fact Brian S. Chan Defendant Office of the Attorney General 4 1300 I Street, Suite 125 Sacramento, CA 95814 5 916-445-3303 Email: brian.chan@doj.ca.gov 6 2. M. Borum Fact (same as above) Defedant 7 3. M. Hernandez Fact (same as above) 8 Counselor 9 4. B. Hancock Fact (same as above) Litigation Coordinator 10 5. Custodian of records for Plaintiff’s central Fact (same as above) file and medical records 11 6. Custodian of records for the central file Fact (same as above) records of any inmate witnesses allowed to 12 testify 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ATTACHMENT C: Plaintiffs’ Exhibits 2 Ex. Description Beginning Bates Nos. Ending Bates Nos. 3 California Department of Corrections and Rehabilitation 602 Appeal Record 4 Defendants’ interrogatory responses Defendants’ admissions 5 Excerpt of Cal. Code Regs. Tit. 15, § 3000 6 CDCR Committee Action, dated 11/19/2015 Kern Valley State Prison 114 File 7 CDCR Committee Action, dated 6/1/2016 8 CDCR Committee Action, dated 9/22/2016 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ATTACHMENT D: Defendant’s Exhibits 2 Ex. Description Beginning Bates Nos. Ending Bates Nos. 3 Abstract of Judgment representing Plaintiff’s felony conviction(s) and sentence(s) 4 Abstract(s) of Judgment representing felony conviction(s) and sentence(s) of Plaintiff’s inmate 5 witnesses (if any) CDCR 115 Rules Violation Report, Log No. FA-15- 6 08-077R, issued to Plaintiff for possession of a cellphone 7 CDCR 115 Rules Violation Report, Log No. 9931, issued to Plaintiff for participation in a prison rit. 8 CDCR 115 Rules Violation Report, Log No. 17807, issued to Plaintiff for refusing a housing assignment 9 CDCR 115 Rules Violation Report, Log No. 19829, issued to Plaintiff for battery on a prisoner 10 The June 1, 2016 classification committee chrono Select excerpts from the CDCR Department 11 Operations Manual and Title 15 of the California Code of Regulations related to C-Status placement 12 Select excerpts from Plaintiff’s deposition, taken November 4, 2019 13 Select excerpts from Plaintiff’s complaint, filed October 24, 2018 14 Select excerpts from Plaintiff’s Central File Records Abstract of Judgment representing Plaintiff’s felony 15 conviction(s) and sentence(s) Abstract(s) of Judgment representing felony 16 conviction(s) and sentence(s) of Plaintiff’s inmate witnesses (if any) 17 CDCR 115 Rules Violation Report, Log No. FA-15- 08-077R, issued to Plaintiff for possession of a 18 cellphone CDCR 115 Rules Violation Report, Log No. 9931, 19 issued to Plaintiff for participation in a prison rit. 20 21 22 23 24 25 26 27 28