STANLEY A. BOONE, Magistrate Judge.
This Court conducted a telephonic pretrial conference hearing on August 29, 2016. Plaintiff Durrell A. Puckett appeared pro se, and Deputy Attorney General Lawrence Bragg appeared on behalf of Defendant. Pursuant to Federal Rule of Civil Procedure 16(e) and Local Rule 283, the Court issues this final pretrial order.
This Court has jurisdiction and venue is proper. This Court has original jurisdiction under 28 U.S.C. § 1331. Venue is proper because a substantial part of the events or omissions on which the claim is based occurred in this District.
Trial will begin on
The following facts are undisputed:
1. That Brandon worked on Plaintiff's housing unit.
2. That Brandon had the capability to work on Plaintiff's tier.
1. Plaintiff Durrell A. Puckett (G-05549) was a California prisoner housed at California State Prison-Corcoran (Corcoran) at all times material to the claims at issue.
2. Defendant K. Brandon was a correctional officer employed by the California Department of Corrections and Rehabilitation (CDCR) at Corcoran at times material to the claims at issue.
3. Puckett filed a lawsuit against Correctional Officer S. Arreguin on June 1, 2010.
4. In June 2013, Puckett was housed at Corcoran in housing unit 3A03-141U, which is located in the lower tier of the housing unit.
5. In June 2013, Brandon was not assigned to work on the tier where Puckett was housed;
6. Puckett did not actually observe Brandon search his cell on June 17, 2013.
7. Cell searches at Corcoran are documented by a Daily Activity Record, which indicates that Puckett?s cell was not searched on June 17, 2013, during second watch, between 6:00 a.m. and 2:00 p.m.
8. Puckett submitted a CDCR form 602 Inmate/Parolee Appeal, log number CSPC-2-13-004412, dated June 17, 2013, which alleged that Brandon had refused to feed him, had harassed him, had used racial epithets, and had searched his cell on June 17, 2013, destroying his family photographs and obituaries, which was not received by the Appeals Office at Corcoran until June 26, 2013.
9. Puckett received a Rules Violation Report, Log Number 3A03-13-06-004, for assaulting Brandon and Licensed Psychiatric Technician G. Coronado on July 18, 2013, by throwing a brown liquid at them and pled guilty to the charge of Battery on a Peace Officer on November 29, 2013.
10. Puckett was exposed to oleoresin capsicum pepper spray on July 18, 2013, in connection with the assault on Brandon and Coronado.
11. Puckett received a Rules Violation Report, Log Number HCO-13-06-02 on June 13, 2013, for Indecent Exposure with Masturbation.
12. Puckett made a suicide attempt on July 7, 2013, by swallowing a razor.
13. Puckett filed a lawsuit, Puckett v. North Kern State Prison Employees, No. 1:08-cv-1243 BTM POR (E.D. Cal.), which alleged that correctional staff destroyed Puckett's family obituaries and photographs.
14. Puckett filed a lawsuit, Puckett v. Zamora, No. 1:12-cv-00948 AWI BAM (E.D. Cal.), which alleged that Puckett experienced emotional distress, paranoia, flashbacks, and became suicidal as a result of incidents with correctional staff on December 30, 2011, and January 10, 2012.
15. Puckett filed a lawsuit, Puckett v. Vogel, No. 1:13-cv-00525 AWI SKO (E.D. Cal.), which alleged that Puckett experienced emotional distress, paranoia, flashbacks, and became suicidal as a result of incidents with correctional staff on October 19, 2011.
16. Puckett filed a lawsuit, Puckett v. Young, No. 1:13-cv-00840 (E.D. Cal.), which alleged that correctional staff issued a false Rules Violation Report.
The following facts are disputed:
1. What tier did Brandon work on.
2. How often did Brandon come in contact with Plaintiff.
3. Did Brandon feed Plaintiff.
1. Whether Brandon was assigned to feed Puckett in June 2013.
2. Whether Brandon refused to feed Puckett in June 2013.
3. Whether Brandon harassed Puckett by calling him a rapist, a pervert, or used racial epithets towards Puckett.
4. Whether Brandon searched Puckett's cell on June 17, 2013.
5. Whether Brandon destroyed Puckett's family obituaries, photographs and legal papers on June 17, 2013.
6. Whether Brandon refused to feed Puckett, harassed Puckett, searched Puckett's cell, and destroyed Puckett's family obituaries, photographs, and legal papers in retaliation for Puckett filing a lawsuit against Correctional Officer S. Arreguin.
7. Whether Puckett suffered from a pre-existing psychological condition as of June 17, 2013.
8. Whether Puckett's suicide attempt of July 7, 2013, was caused by retaliation by Brandon because Puckett had filed suit against S. Arreguin.
9. Whether Puckett experienced any harm or damage as a result of the conduct of Brandon.
The following evidentiary issues are disputed:
Defendant contends that prior lawsuits filed by Puckett alleging similar injuries and damages is relevant to the issue of damages claimed in the present action. When a plaintiff is claiming an injury, evidence of prior claims involving similar injuries is relevant to the issue of damages.
Defendant asserts that Puckett has a pattern of filing lawsuits alleging retaliation by correctional staff after correctional staff issued a Rules Violation Report. Evidence that plaintiff has filed other baseless lawsuits or claims that were similar in nature to the current claim may be relevant to show a pattern, scheme, or modus operandi.
Evidence should be excluded when it lacks relevance, consists of hearsay, is mere opinion, has not been authenticated, or when its probative value is substantially outweighed by the danger of unfair prejudice, confusion or needless delay. Fed R. Evid. 402, 403, 602, 701, 802, 901(b). Defendant objects to any evidence submitted by Puckett based upon or containing inadmissible hearsay, or evidence that is irrelevant, immaterial, or incompetent.
Defendant will contest the admissibility of any written statements by inmates whom Puckett claims are witnesses including, but not limited to, any statement signed by said inmates.
Defendant objects to any opinion testimony from Puckett regarding any matters that call for medical expertise. Puckett should be precluded from offering at trial any and all testimony, reference to testimony, or argument relating to testimony, concerning any medical diagnoses Puckett received or the causation of these alleged injuries, in the form of an expert opinion which Puckett is not qualified to give. Specifically, Puckett must be barred from offering his own opinion testimony concerning his claimed injuries and his contention that they resulted from Defendant's actions. Because Puckett is not a medical expert, any opinion testimony he could offer concerning his medical diagnoses or the cause of his injuries are precluded under Federal Rules of Evidence 701 through 703. Thus, Puckett must be precluded at trial from providing medical opinion testimony.
Should Puckett or any other incarcerated witnesses testify, Defendant will seek to impeach such witnesses by presenting evidence of prior felony convictions, under Federal Rule of Evidence 609. The verdict in this case will be affected by the credibility of witnesses. Therefore, Defendant argues that no one who has suffered a prior felony conviction is entitled to the false aura of veracity which would occur if impeachment were not allowed.
Defendant reserves objections to specific testimony and exhibits until such time as Defendant has had the opportunity to hear such testimony and examine such exhibits. Defendant will also file specific objections to Puckett's exhibits once they have been exchanged with Defendant.
Puckett alleges that Brandon retaliated against him in violation of the First Amendment by refusing to feed him, harassing him and using racial epithets, and by searching his cell on June 17, 2013, and destroying Puckett's family obituaries, photographs and legal papers. Puckett alleges that he experienced emotional upset and became suicidal as a result of this alleged retaliation. Puckett was twenty-seven years of age at the time of the alleged events and was incarcerated at Corcoran serving a sentence imposed on January 24, 2008. All of the medical treatment received by Puckett following the alleged incident was provided by the Defendant's employer, the California Department of Corrections and Rehabilitation. Due to his incarceration, Puckett has no viable claim for lost wages or earning capacity. The evidence will demonstrate that Puckett suffered from pre-existing psychological conditions and experienced subsequent psychological upset which are unrelated to the alleged conduct of Brandon.
Plaintiff seeks punitive damages in the amount of $30,000 and whatever relief the Court deems necessary.
Defendant prays for judgment in her favor with Plaintiff taking nothing, as well as an award of costs, and such other relief as the Court deems proper.
Defendant submits the following points of law:
In order to prevail, Puckett must first demonstrate a violation of his federally protected constitutional rights.
A viable claim of First Amendment retaliation in the prison context requires evidence that the prison official took some adverse action against an inmate because of that prisoner's protected conduct, that such action would chill a person of ordinary firmness from future First Amendment activities, and that the action did not reasonably advance a legitimate correctional goal.
To prevail on a retaliation claim, a plaintiff must show that his protected conduct was "the `substantial' or `motivating' factor behind the defendant's conduct.
Mere conclusions of hypothetical retaliation will not suffice; a prisoner must "allege" specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.
If a prisoner violates a legitimate prison regulation, he is not engaged in "protected conduct," and he cannot proceed with his retaliation claim.
Puckett must prove more than a violation of his Eighth Amendment right to recover punitive damages. In a § 1983 action, punitive damages are recoverable only if the defendant intended to violate federal law, or acted in a reckless or callous disregard of plaintiff's federally protected rights.
The verdict in this case will be decided by the jury after consideration of each witness's credibility. In order to meet his burden of proof at trial, Puckett is expected to testify to his version of the events that occurred and to the basis for his belief that his constitutional rights were violated. Rule 609 of the Federal Rules of Civil Procedure provides that evidence of a witness's prior conviction of a felony may be used to impeach that witness's testimony. Additionally, any of Puckett's incarcerated witnesses who testify are also subject to impeachment under Rule 609.
Defendant stipulates that the parties need not introduce evidence to prove any undisputed facts as set forth by Defendant. Defendant further stipulates to the authenticity of the documents.
Defendant does not have any requested amendments.
Defendant does not believe that a settlement conference should be scheduled.
None.
As is this Court's standard practice, the Court will bifurcate the issue of punitive damages. If the jury finds that Defendant is liable for punitive damages, the Court will conduct a second phase of trial on the amount of punitive damages.
Defendant submits that under federal law, Defendant bears the burden of proving financial worth when arguing in mitigation of damages.
None.
Any party may file a motion
This Court further orders the parties to file motions
The parties shall not file separate motions
As set forth in the Trial Scheduling Order (ECF No. 52), the deadline for service and filing of motions in limine is
No later than
During trial, the parties' are obligated to provide the opposing party, by the close of the prior business day, the names of the witnesses the party intends to call on the next trial day. If evidentiary problems are anticipated, the parties' shall immediately notify the Court that a hearing will be required.
The following is a list of witnesses that the parties expect to call at trial:
a. M. Gunther, M.D., Kern Valley State Prison, Delano, California. Dr. Gunther is the Chief of Mental Health at Kern Valley State Prison (KVSP) and will testify concerning the nature and extent of emotional and/or mental injuries, if any, sustained by Plaintiff as a result of the incident(s) of June 17, 2013, at California State Prison-Corcoran, which is the subject of the above action. In addition, Dr. Gunther may provide opinions to rebut any allegations or evidence as to Puckett's injuries that Puckett, and/or experts retained by Puckett, testify to. The basis for Dr. Gunther's opinions will be a review of Puckett?s prison health care records, and Dr. Gunther's experience and training as a Chief of Mental Health for CDCR. Dr. Gunther has not prepared a report concerning this matter as he is an employee of the California Department of Corrections and Rehabilitation (CDCR) whose regular job duties do not include providing expert witness testimony at trial under Federal Rule of Civil Procedure 26(a)(2)(B).
Summary of Dr. Gunther?s Opinions: (1) Plaintiff did not suffer a significant mental injury, or experience long-term consequences, as a result of the incident(s) of June 17, 2013, involving correctional staff at California State Prison-Corcoran; (2) Plaintiff suffered from pre-existing psychological conditions and experienced subsequent psychological episodes; and (3) any emotional distress experienced by Plaintiff between June 2013, and the present, is unrelated to the alleged conduct of Defendant Brandon.
b. K. Knight, M.D., California State Prison-Corcoran, Corcoran, California. Dr. Knight is an employee of the California Department of Corrections and Rehabilitation (CDCR) who was a treating physician for Plaintiff. Dr. Knight is not specially employed to provide expert witness testimony for CDCR. Dr. Knight will testify to the diagnosis and treatment of Plaintiff's medical and psychological condition(s) while incarcerated by CDCR.
c. J. Kotler, Ph.D., California State Prison-Corcoran, Corcoran, California. Dr. Kotler is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Kotler is not specially employed to provide expert witness testimony for CDCR. Dr. Kotler will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
d. Ernest Wagner, M.D., 1400 N. Harbor Blvd., Suite 440, Fullerton, CA 92835 (714) 773-1502. Dr. Wagner is a former employee of CDCR who was a treating physician for Plaintiff. Dr. Wagner is not specially employed to provide expert witness testimony for CDCR. Dr. Wagner will testify to the diagnosis and treatment of Plaintiff's medical and psychological condition(s) while incarcerated by CDCR.
e. S. Grewal, M.D., California State Prison-Corcoran, Corcoran, California. Dr. Grewal is an employee of CDCR who was a treating physician for Plaintiff. Dr. Grewal is not specially employed to provide expert witness testimony for CDCR. Dr. Grewal will testify to the diagnosis and treatment of Plaintiff's medical and psychological condition(s) while incarcerated by CDCR.
f. V. Vasilescu, Ph.D., California State Prison-Corcoran, Corcoran, California. Dr. Vasilescu is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Vasiescu is not specially employed to provide expert witness testimony for CDCR. Dr. Vasilescu will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
g. G. Thomas, Ph.D., California State Prison-Corcoran, Corcoran, California. Dr. Thomas is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Thomas is not specially employed to provide expert witness testimony for CDCR. Dr. Thomas will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
h. H. Becicht, Ph.D., California State Prison-Corcoran, Corcoran, California. Dr. Becicht is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Becicht is not specially employed to provide expert witness testimony for CDCR. Dr. Thomas will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
i. L. Yu, Ph.D., Pelican Bay State Prison, Crescent City, California. Dr. Yu is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Yu is not specially employed to provide expert witness testimony for CDCR. Dr. Yu will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
j. W. Yee, M.D., Pelican Bay State Prison, Crescent City, California. Dr. Yee is an employee of CDCR who was a treating physician for Plaintiff. Dr. Yee is not specially employed to provide expert witness testimony for CDCR. Dr. Yee will testify to the diagnosis and treatment of Plaintiff's medical and psychological condition(s) while incarcerated by CDCR.
k. C. Penn, Ph.D., Pelican Bay State Prison, Crescent City, California. Dr. Penn is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Penn is not specially employed to provide expert witness testimony for CDCR. Dr. Penn will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
l. L. Castricone, Ph.D., Pelican Bay State Prison, Crescent City, California. Dr. Castricone is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Castricone is not specially employed to provide expert witness testimony for CDCR. Dr. Castricone will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
m. P. Sayer, Ph.D., Pelican Bay State Prison, Crescent City, California. Dr. Sayer is an employee of CDCR who was a treating psychologist for Plaintiff. Dr. Sayer is not specially employed to provide expert witness testimony for CDCR. Dr. Sayer will testify to the diagnosis and treatment of Plaintiff's psychological condition(s) while incarcerated by CDCR.
All witnesses are available through Defendant's counsel at 1300 I. Street, Sacramento, CA 95814. Defendant respectfully reserves the right to list additional witnesses, including expert and rebuttal witnesses, as deemed appropriate at the time of trial.
As noted below, no later than
All exhibits must be pre-marked with an exhibit sticker or other legible numbering/lettering by the party who seeks to use it. If the individual exhibit includes multiple pages and is not easily identified as to each page (
No later than
Defendants are required to submit trial exhibits for both parties in binders. As noted above, Defendant shall submit
The following is a list of documents or other exhibits that the parties expect to offer at trial. As set forth above, exhibits must be pre-marked.
None listed.
i. Abstract of Judgment representing Puckett's felony conviction(s) and sentence(s);
ii. Abstract(s) of Judgment representing felony conviction(s) and sentence(s) of Puckett?s inmate witnesses (if any);
iii. Puckett?s CDCR chronological movement history;
iv. CDCR 602 Inmate/Parolee Appeal Form, Log Number CSPC-2-13-004412;
v. Relevant portions of Puckett's prison medical and psychological records;
vi. Rules Violation Report, Log Number 3A03-13-06-004, dated July 2, 2013;
vii. CDCR Crime/Incident Report, Log Number COR-03A-13-06-0360A1, dated June 18, 2013;
viii. Daily Activity Record from Corcoran, dated June 17, 2013;
ix. Rules Violation Report, Log Number HCO-13-06-02, dated June 13, 2013;
x. CDCR Crime/Incident Report, Log Number COR-HCO-13-06-0351, dated June 13, 2013;
xi. Rules Violation Report, Log Number 3A03-13-07-012, dated July 29, 2013;
xii. CDCR Crime/Incident Report COR-03A-13-07-0450, dated July 29, 2013;
xiii. Rules Violation Report, Log Number P13-1-0005, dated September 7, 2013;
xiv. CDCR Crime/Incident Report PBSP-CTCI-13-09-0373, dated September 7, 2013;
xv. Rules Violation Report, Log Number 03-P-1113-025, dated November 9, 2013;
xvi. CDCR Crime/Incident Report CMF-MCS-13-11-0518, dated November 9, 2013;
xvii. Complaint and relevant pleadings from Puckett v. Areguin, No. 1:10-cv-00971 (E.D. Cal.);
xviii. Complaint and relevant pleadings from Puckett v. North Kern State Prison Employees, No. 1:08-cv-1243 BTM POR (E.D. Cal.);
xix. Complaint and relevant pleadings from Puckett v. Zamora, No. 1:12-cv-00948 AWI BAM (E.D. Cal.);
xx. Complaint and relevant pleadings from Puckett v. Vogel, No. 1:13-cv-00525 AWI SKO (E.D. Cal.);
xxi. Complaint and relevant pleadings from Puckett v. Young, No. 1:13-cv-00840 (E.D. Cal.);
xxii. CDCR form 602 Inmate/Parolee Appeal, Log Number CSP-COR-13-4404;
xxiii. CDC 1083 Inmate Property Inventory, dated July 31, 2013; and
xxiv. Photographs of the portions of California State Prison-Corcoran where the alleged incident(s) occurred.
If the parties intend to use copies of exhibits or evidence at trial, those copies must be legible. The Court may, on its own motion, exclude illegible copies from evidence.
The parties may admit responses to discovery requests
If a party seeks to admit a physical copy of the discovery responses into evidence at trial, the discovery responses must be pre-marked as an exhibit in the same manner discussed above.
Even though discovery is closed, all parties are reminded of their continuing obligation to update their prior discovery responses if they obtain new information or is otherwise made aware that a prior discovery response is incomplete or incorrect. Fed. R. Civ. P. 26(e)(1).
Deposition testimony shall be designated by page and line number, with such designation to be
If any party intends to admit relevant portions of deposition testimony into evidence, the relevant deposition testimony must be pre-marked as an exhibit in the same manner discussed above.
The Court will address objections to deposition testimony as they arise during trial.
The Court respects the jury's time and expects issues that must be presented outside the jury's presence to be raised such that the jury's service is not unnecessarily protracted. To the extent possible, the parties shall raise issues that must be presented to the Court outside of the jury's presence (1) in the morning before the jury sits, (2) during breaks, (3) in the afternoon after the jury is excused or (4) during any other appropriate time that does not inconvenience the jury. For example, if evidentiary problems can be anticipated, the parties should raise the issue with the Court before the jury sits so that there is no delay associated with specially excusing the jury. Issues raised for the first time while the jury is sitting when the issue could have been raised earlier will be looked upon with disfavor and counsel may be sanctioned for any fees, costs or other expenses caused by their failure to raise the issue at a more convenient time.
Pursuant to Local Rule 138(f), the Court will order that custody of all exhibits be returned to the defendant's counsel after completion of the trial. The defendant's counsel shall retrieve the original exhibits from the courtroom deputy following the verdict in the case. The defendants' counsel shall retain possession of and keep safe all exhibits until final judgment and all appeals are exhausted or the time for filing an appeal has passed.
Trial briefs are not required in this case. However, if the parties chose the file a trial brief, it shall be filed and served no later than
The parties shall filed proposed jury instructions as provided in Local Rule 163 on or before than
The Court will not accept a mere list of numbers associated with form instructions from the Ninth Circuit Model Jury Instructions, CACI, BAJI or other source of jury instructions. The proposed jury instructions must be in the form and sequence which the parties desire to be given to the jury. Any blank fields in the form instructions must be filled-in before they are submitted to the Court. Irrelevant or unnecessary portions of form instructions must be omitted.
Ninth Circuit Model Jury Instructions shall be used where the subject of the instruction is covered by a model instruction. Otherwise CACI or BAJI instructions shall be used where the subject of the instruction is covered by CACI or BAJI. All instructions shall be short, concise, understandable, and consist of neutral and accurate statements of the law. Argumentative or formula instructions will not be considered.
If any party proposes a jury instruction that departs from the language used in the Ninth Circuit Model Jury Instructions, CACI, BAJI or other source of jury instructions, that party shall, by italics or underlining, highlight the differences in language and must cite the legal authority supporting the modification.
No later than
The Court will prepare the verdict form, which the parties will have the opportunity to review on the morning of trial. If the parties wish to submit a proposed verdict form, they must do so on or before
Proposed
The parties may serve and file a non-argumentative, brief statement of the case which is suitable for reading to the jury at the outset of jury selection on or before
The parties must immediately notify the Court of any agreement reached by the parties which resolves this litigation in whole or in part. Local Rule 160(a). The parties must advise the Court of settlement
Strict compliance with this order and its requirements is mandatory. This Court will strictly enforce the requirements of this pretrial order, especially those pertaining to jury instructions and verdict forms. Failure to comply with all provisions of this order may be grounds for the imposition of sanctions, including possible dismissal of this action or entry of default, on any all counsel as well as on any party who causes non-compliance with this order. This order shall be modified "only to prevent manifest injustice." Fed. R. Civ. P. 16(e).
Moreover, this order supersedes the parties' pretrial statement and controls the conduct of further proceedings irrespective of any purported rights the parties claim to reserve in their pretrial statement.
Any party may file and serve written objections to any of the provisions of this order on or before
Any party wishing to receive an overview or tutorial of the Court's electronic equipment must contact the Courtroom Deputy Clerk Mamie Hernandez at (559) 499-5672 or mhernandez@caed.uscourts.gov at least two (2) weeks before the start of trial in order to schedule a tutorial session at a time convenient to the Court's Information Technology staff. The parties need to coordinate so everyone who is interested can attend the IT conference, the Court will hold only one conference per case. The parties shall confer and advise the Courtroom Deputy Clerk Mamie Hernandez of the date and time that has been agreed upon. The parties will not be provided any training on the day of or during the course of the trial.
The electronic equipment and resources available for this trial may differ from the equipment and resources available in other courtrooms and may even differ from the equipment and resources available in this courtroom at another time. It is the responsibility of the parties to familiarize themselves with the equipment and resources available for use in this trial prior to the commencement of trial. If any party is unfamiliar with the equipment and resources available for use in this trial, that party may be ordered to proceed without the aid of such equipment and resources and/or may be sanctioned for any fees, costs or expenses associated with any delay.
Depending upon Court available equipment at the time of trial, the Plaintiff may be provided with an electronic overheard projector at his trial table for purposes of showing exhibited and admitted exhibits at trial. Accordingly, Plaintiff need not request that he allowed to use electronic equipment as Plaintiff may be provided with electronic equipment if available.
Additional information describing this Court's expectations regarding attorney conduct and decorum during all proceedings before United States Magistrate Judge Stanley A. Boone can be found at the United States District Court for the Eastern District of California's website (