WILLIAM B. SHUBB, District Judge.
A Final Pretrial Conference was held in this matter, pursuant to the provisions of Rule 16(d) of the Federal Rules of Civil Procedure and Local Rule 282, on April 13, 2015. Michael J. Haddad appeared as counsel for plaintiff, and Stephen C. Pass appeared as counsel for defendants. Following the conference, the court enters this Final Pretrial Order:
Jurisdiction is predicated upon federal question jurisdiction, 28 U.S.C. § 1331, 1343, because plaintiff's claims arise under 42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. §§ 12101
All parties have demanded a jury trial. Accordingly, the action shall be tried, pursuant to Federal Rule of Civil Procedure 48, before a jury consisting of no less than six and no more than twelve members.
No later than ten court days before the trial date, counsel for plaintiff shall lodge and serve, pursuant to Local Rule 163, copies of all jury instructions that plaintiff requests be given on plaintiff's claims. At that time, counsel for plaintiff shall also file and serve a copy of a proposed form of verdict.
No later than seven court days before the trial date, counsel for defendants shall file and serve any objections to the instructions proposed by plaintiff. At the same time, counsel for defendants shall lodge and serve, pursuant to Local Rule 163, copies of any and all jury instructions not already proposed by plaintiff, which defendants requests be given. Also at that time, counsel for defendants shall file and serve a copy of any proposed form of verdict and shall also file any objections to plaintiff's proposed form of verdict.
No later than four court days before the trial date, counsel for plaintiff shall file and serve any objections to the instructions proposed by defendants and to any proposed form of verdict. The verdict form shall include all questions which counsel contend the jury will need to answer in order to provide the court with sufficient facts to rule upon defendants' claim of qualified immunity.
Pursuant to Local Rule 163, any other instructions thereafter presented will be refused unless it is shown either: (1) that the necessity for the request arose in the course of trial; could not reasonably have been anticipated prior to trial from the pleadings, discovery or nature of the action; and the request for such additional instructions is presented to the Court as promptly as possible; or (2) that the refusal to give such instructions would constitute plain error.
Likewise, any objections to proposed instructions not made in accordance with this order will be overruled as untimely unless it is shown either: (1) that the grounds therefor arose in the course of trial and the intention to make such objections is communicated to the Court as promptly as possible, or (2) that the giving of such instructions would constitute plain error.
No later than fourteen calendar days before the trial date, counsel for each party shall submit all proposed jury voir dire questions. Each side shall have one-and-a-half hours to question jurors.
No later than fourteen calendar days before the trial date, counsel for each party shall file trial briefs pursuant to Local Rule 285.
Plaintiff's counsel stated plaintiff will abandon his claim for negligence under California law. Plaintiff's remaining claims for trial against defendants Brame and Plumb are (1) excessive force in violation of the Fourth Amendment, 42 U.S.C. § 1983; (2) unlawful arrest in violation of the Fourth Amendment, 42 U.S.C. § 1983; (3) excessive force, false arrest, bodily restraint, harm or personal insult in violation of Cal. Civil Code section 52.1; (4) assault and battery; (5) false arrest or imprisonment; and (6) violation of the Rehabilitation Act and Title II of the Americans with Disabilities Act.
(A) Plaintiff anticipates calling the witnesses identified at Exhibit "A" attached hereto.
(B) Defendants anticipate calling the witnesses identified at Exhibit "B" attached hereto.
(C) Except for retained experts, each party may call any witness designated by any other party.
(D) No other witnesses will be permitted to testify at trial unless:
(1) all parties stipulate that the witness may testify;
(2) the party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not have been reasonably anticipated at the time of the Pretrial Conference; or
(3) the witness was discovered after the Pretrial Conference.
(E) Testimony of a witness not designated in this Order, which is offered under paragraph VII(D)(3), above, upon the grounds that the witness was discovered after the Pretrial Conference, will not be permitted unless:
(1) the testimony of the witness could not reasonably have been discovered prior to the Pretrial Conference;
(2) the court and opposing counsel were promptly notified upon discovery of the testimony; and
(3) counsel proffered the witness for deposition if time permitted or provided all opposing counsel a reasonable summary of the testimony if time did not permit a deposition.
(A) Plaintiff intends to offer the exhibits identified at Exhibit "C" attached hereto.
(B) Defendants intend to offer the exhibits identified at Exhibit "D" attached hereto.
(C) Each party may offer any exhibit designated by any other party.
(D) No other exhibits will be received in evidence unless:
(1) all parties stipulate that the exhibit may be received in evidence;
(2) the party offering the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence which could not have been reasonably anticipated at the time of the Pretrial Conference; or
(3) the exhibit was discovered after the Pretrial Conference.
(E) An exhibit not designated in this Order, which is offered under paragraph VIII(D)(3), above, upon the grounds that the exhibit was discovered after the Pretrial Conference, will not be received in evidence unless:
(1) the exhibit could not reasonably have been discovered prior to the Pretrial Conference;
(2) the court and opposing counsel were promptly notified upon discovery of the exhibit; and
(3) counsel provided copies of the exhibit to all opposing counsel if physically possible or made the exhibit reasonably available for inspection by all opposing counsel if copying was not physically possible.
(F) Each party shall exchange copies of all exhibits identified in this Order, or make them reasonably available for inspection by all other parties, no later than seven calendar days before the trial date. Any and all objections to such exhibits shall be filed and served not later than four calendar days before the trial date.
(G) The attorney for each party is directed to appear before trial and present an original (and if physically possible one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at 8:30 a.m. on the date of trial.
(H) Each exhibit which has been designated in this Order and presented on the morning of the date of trial shall be pre-marked by counsel. Plaintiff's exhibits shall bear numbers; defendants' exhibits shall bear letters. If no objection has been made to such exhibit pursuant to paragraph VIII(F), above, such exhibit will require no further foundation and will be received in evidence upon the motion of any party at trial.
At the pre-trial conference, the parties addressed motions in limine they intended to bring, although no motions in limine have been filed as of the time this Order is signed. The court will be better able to rule on those evidentiary objections in the course of trial. In addition, the following preliminary determinations were made:
(1) if plaintiff seeks to introduce evidence of any previous complaints against defendants, or if defendants intend to introduce evidence of plaintiff's previous history, including his anger management problems or his participation in the Golden Gloves boxing competition, parties shall first address the court at sidebar outside the presence of the jury; and
(2) with respect to plaintiff's objection as stated in plaintiff's pretrial statement § 5(3), defendants stipulated that they would not specifically argue that they could have been sued if plaintiff had caused an accident had they released him at the time of the incident.
Parties are reminded that they must preserve their evidentiary objections at the time of trial. Motions in limine should be restricted to issues where there is a risk that a bell could be rung at trial that cannot later be unrung, resulting in a mistrial.
Except for motions in limine, no further motions shall be brought before trial except upon order of the court and upon a showing of manifest injustice. Fed. R. Civ. P. 16(e). No further discovery will be permitted except by the express stipulation of all parties or upon order of the court and upon a showing of manifest injustice.
No later than twenty calendar days before the trial date, counsel for each party shall file and serve a statement designating all answers to interrogatories and all portions of depositions intended to be offered or read into evidence, with the exception of portions to be used only for impeachment or rebuttal. No later than ten calendar days before the trial date, counsel for any other party may file and serve a counter-designation of other portions of the same depositions intended to be offered or read into evidence and may file evidentiary objections to any other parties' designation. No later than seven calendar days before the trial date, the parties may file evidentiary objections to any other party's counter-designation.
The trial is set for June 2, 2015, in Courtroom No. 5. The court estimates that the trial will last approximately seven to ten court days.
A settlement conference is scheduled before Judge Newman on May 27 at 9:30 a.m. in Courtroom 25, 8th Floor. Each party is directed to have a principal capable of disposition at the Settlement Conference or to be fully authorized to settle the matter on any terms at the Settlement Conference. Each party is further directed to submit via email to
Any challenges based on
If any party feels that electronic presentation is necessary, they should contact the Courtroom Deputy prior to trial to determine what equipment the court has and how to use that equipment or bring their own audio visual equipment to the courtroom and be prepared to operate it themselves.
Any objections or suggested modifications to this Pretrial Order shall be filed and served within five court days from the file-stamped date of this Order. All references herein to the date of this Order shall refer to the date the tentative order is filed and not to the date any amended order is filed. If no objections or modifications are made, this Order will become final without further order of the Court and shall control the subsequent course of the action, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure.
1. Photograph of Mr. Orr's disabled person's license plate DP 429 DP
2. Photographs of Mr. Orr's injuries
3. Photographs of Mr. Orr taken by a CHP employee while Mr. Orr was in custody at the North Sacramento CHP Station
4. Photographs of Mr. Orr from his booking at the Sacramento County Jail
5. Photographs of the scene of the incident (Marconi Curve)
6. Google Earth aerial photographs and maps of the scene (Marconi Curve)
7. CHP MVARS video
8. CHP General Order 100.61 (rev'd. May 2010) Use of Mobile Video/Audio Recording Systems
9. CHP General Order 100.61 (rev'd. Sept. 2013) Use of Mobile Video/Audio Recording Systems
10. Excerpts from CHP DUI Enforcement Manual HPM 70.4 (rev'd. 2005)
11. Excerpts from CHP DUI Enforcement Manual HPM 70.4 (rev'd 1995) (pp. 2-7-2-15; 3-6-3-7; 4-11-4-12; 11-1 -11-13)
12. Excerpts from CHP Traffic Enforcement Manual HPM 100.68 (pp. 2-3-2-5) (DOJ001723-001725)
13. CHP HPM 70.6, Officer Safety Manual, Chapter 21, "Handcuffing/Standing/Walking/Flex-Cuffing," pp. 21-1-21-2 (DOJ001451-001452)
14. Declaration of CHP Commander of the Fiscal Management Section Mieko S. Epps, declaring that CHP receives federal funding in the form of grants from the U.S. government.
15. Declaration of CHP Sergeant Jeffrey Carlisle declaring that CHP has no specific ADA or RA policies other than the handcuffing procedures in HPM 70.6 (pp. 21-1-21-2) and the policies in HPM 100.69
16. California Commission on Peace Officer Standards and Training (POST) Learning Domain 34, First Aid & CPR Version Four, pp. 5-12-5-13
17. California Commission on Peace Officer Standards and Training (POST) Learning Domain 28, Traffic Enforcement, Version Four, pp. 5-1-5-31
18. California Commission on Peace Officer Standards and Training (POST) Learning Domain 20, Use of Force, Version Two, pp. 2-1-2-16, 4-1-end
19. California Commission on Peace Officer Standards and Training (POST) Learning Domain 1, Leadership, Professionalism and Ethics, Version Five, pp. 2-1-end
20. CHP 216 (Arrest-Investigation Report)
21. Ofc. Brame's CHP 180 (Vehicle Report)
22. Ofc. Brame's Arrest Report
23. Ofc. Hannem's CHP 202 DRE (Drug Recognition Evaluation), 08/06/13
24. Ofc. Ronnie Stott's CHP Use of Force Report
25. Citation for violation of P.C. 148
26. Mr. Orr's Discharge Summary, 09/03/06, Veterans Administration Medical Records
27. Mr. Orr's Progress Note, 09/05/06, Veterans Administration Medical Records
28. Mr. Orr's Discharge Summary, 09/06/06
29. Mr. Orr's Primary Care Note, 10/05/12, Veterans Administration Medical Records
30. Sacramento Metropolitan Fire District Incident History for #F13070690, 06/02/13 (Mr. Orr's TIA stroke)
31. Sacramento Metropolitan Fire District Records for:#F13070690, 06/02/13 (Mr. Orr's TIA stroke)
32. Excerpt from Mr. Orr's Consultation during inpatient visit, 06/02/13-06/05/13, from Mercy San Juan Medical Center Records
33. Mr. Orr's Discharge Summary, 06/06/13, Mercy San Juan Medical Center Records
34. Sacramento Metropolitan Fire District Dispatch Audio Recording (.wav file "Audio_178516)
35. Sacramento Metropolitan Fire District Incident History for #F13101442, 08/06/13 (CHP Incident with Mr. Orr)
36. Sacramento Metropolitan Fire District Incident History for #F13101442, 08/06/13
37. Mr. Orr's Progress Note, 08/08/13, Veterans Administration Medical Records
38. Mr. Orr's Veterans Administration Records regarding treatment for injuries received in incident, 08/08/13-08/15/13
39. Mr. Orr's Progress Note, 08/15/13, Veterans Administration Medical Records
40. Sacramento Metropolitan Fire District Dispatch Audio Recording (.wav file "Audio_178538") 08/26/13 (Eve Bolton calling regarding Mr. Orr's post-incident hip pain)
41. Sacramento Metropolitan Fire District Incident History for #F13110998, 08/26/13 (Mr. Orr's post-incident hip pain)
42. Sacramento Metropolitan Fire District Records for: #F13110998, 08/26/13 (Mr. Orr's post-incident hip pain)
43. CHP Incident Detail Report (CAD log)
44. Email from Ronald Wade, CHP, to Robin Snow, CHP, on 01/22/14 asking for dispatch audio tapes
45. Email from Robyn Snow, CHP, to Ronald Wade, CHP, on 01/23/14 stating that neither radio recorded dispatch audio
46. Email on 03/11/14 from Jerianne Eckman, CHP, to Cortney Walker, CHP, asking for confidential letter explaining why there is no audio to preserve, and email response on 03/20/14 from Cortney Walker to Jerianne Eckman explaining that the attached letter is the certification sent out when there is a voiceprint malfunction
47. CHP Certification Letter dated 03/20/14 referred to in Cortney Walker's 03/20/14 email to Jerianne Eckman stating no dispatch audio for incorrect date of 11/08/13
48. Declaration of Robyn Snow, CHP, 11/17/14, regarding voiceprint audio system frequent malfunctioning as reason why there is no dispatch audio for the incident with Mr. Orr
49. CHP Certification Letter, dated 08/28/14, from Lieut. T.D. Johnson, Acting Commander, to Carolyn Lloyd re: Master Voice Tape Audio Logger malfunction on 08/06/13 Case
50. List of Michael Baldwin's service tickets for 2013 pertaining to the Voice Print Logging Recorder (DOJ000932-000934)
51. Expert Report of Defendants' Expert Witness Sgt. Jennifer Hannum
52. Watch Guard DV-1 User Manual Coverpage
53. Metadata from WELSH DV-1
54. Mr. Orr's Sacramento County Sheriff's Department Correctional Health Services Records (PLF000025-000032)
55. Mr. Orr's Sacramento County Sheriff's Department Jail (Non-Medical) Records (PLF000033-000044)
56. Sacramento County Jail Booking Video Disc 1 of 3 (contains Video_TS folder)
57. Sacramento County Jail Booking Video Disc 2 of 3 (contains one Windows Media .asf file)
58. Sacramento County Jail Booking Video Disc 3 of 3 (contains two Windows Media .asf files)
59. Roger Clark's CV
60. Roger Clark's Rule 26 Expert Report
61. California Code of Regulations Title 24, Part 1, §§ 13-102 and Part 2, § 1231, Minimum Standards for Local Detentions Facilities (2008 Regulations)
62. California Code of Regulations, Title 15-Crime Prevention and Corrections, Minimum Standards for Local Detention Facilities, Division 1, Chapter 1, Subchapter 4. (2010 Regulations, effective September 19, 2012)
63. Performance-Based Standards for Adult Local Detention Facilities, Fourth Edition
64. Defendants' Rebuttal Police Practices Expert Curtis Cope Rule 26 Report
65. Defendants' Rebuttal Police Practices Expert Curtis Cope's article Understanding the Objectively Reasonable Standard, 08/27/10
66. DMV Registration for Mr. Orr's Toyota (PLF 000018)
67. DMV Driver Safety/Field Referral, 11/07/13, for Mr. Orr (PLF000010-000011)
68. Sacramento County District Attorney Letter, 09/19/14, stating that the DA declined to charge Mr. Orr for violating Cal. Penal Code § 148 "due to insufficient evidence." (PLF000045)
69. DMV form signed by Ofc. Brame requesting Driver's Evaluation of Mr. Orr (PLF 20)
70. DMV records re: post-incident Driver's Evaluation (DMV PLF 1-24)
71. Ofc. Brame performance evaluations (DOJ 2455, 2503, 2513, 2516, 2630, 2632, 2634, 2640, 2644, 2652, 2657, 2667, 2669, 2675, 2691, 2703) (in chronological order)
72. Ofc. Brame's notice of sustained complaint for "discourtesy" arising from use of handcuffs and violation of HPM 100.68) (DOJ 2701, 2713-2717)
73. Ofc. Plumb's Resume and cover letter (DOJ 2350-2352)
