EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He proceeds on a First Amendment retaliation claims against defendants Amero, Hougland, Von Rader, and Simmerson. He claims that Amero, Von Rader, and Hougland threatened him with cell searches and property confiscation if he did not "shut-up" during an interview regarding an administrative appeal. ECF No. 16 ¶ 11. He also claims that Amero retaliated against him by cancelling his administrative appeal. Id. Lastly, he claims that defendant Simmerson threatened him with physical harm if he filed another complaint. Id. ¶¶ 14, 20. In accordance with the parties' pretrial statements, the court orders as follows:
This court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391 and Local Rule 120(d). There is no dispute over either jurisdiction or venue.
Defendants previously sought summary judgment. In denying that motion, the court found disputed issues of fact as to whether Amero's cancelling of plaintiff's appeal for "failure to cooperate" was pretextual, and thus, lacked a legitimate penological purpose. The court also found disputed issues of fact as to whether Simmerson was working on the evening of March 11, 2005, and whether he met with plaintiff as plaintiff claims. ECF No. 96 at 9, 15; ECF No. 98.
The parties also identify the following disputed facts in their pretrial statements:
Plaintiff has filed motions in limine seeking to admit numerous documents and statements and to exclude information regarding convictions, prior bad acts, and certain rules violation reports. ECF Nos. 115, 116.
Defendants believe it is evident from plaintiff's pretrial statement and motions in limine that he intends to expand his claims to include "irrelevant arguments regarding systemic complaints and alleged `class-based animus' against inmates." ECF No. 120 at 3. Defendants intend to file motions in limine to limit the evidence in this matter to the actual remaining claims in this action.
Motions in limine shall be filed not later than twenty-one days before trial.
Plaintiff seeks $20,000 in compensatory damages from each defendant. He also seeks $20,000 in punitive damages from each defendant. ECF 114 at 11, 131.
Defendants seek judgment in their favor.
Plaintiff's pretrial statement did not include a "Points of Law" section. See ECF No. 114.
Defendants included the following "Points of Law" section in their pretrial statement:
ECF No. 120 at 4-5.
The parties shall serve and file trial briefs (as described in Local Rule 285) no later than fourteen days before trial. The parties shall thoroughly address all applicable claims and defenses in their trial briefs.
None.
On December 20, 2013, plaintiff filed a "Motion for Issuance of the Subpoena Duces Tecum Upon Hostile Witnesses & Request to Assign Marshal Fees to the Defendants for Service of the Processes & Costs." ECF No. 117. Plaintiff states that his requested witnesses are "material" and thus, the court "has discretion to assign witness & travel expenses to the defendants." Id. at 4:18-21. Plaintiff is mistaken. The court's October 24, 2013 order, which plaintiff acknowledges in his motion, makes clear that there is no statute authorizing the use of public funds for these expenses in civil cases. ECF No. 108 at 3. The tendering of witness fees and travel expenses is required even if the party has been granted leave to proceed in forma pauperis. Id. Plaintiff's request that the court order his proposed witnesses to appear with certain documents, such as "statistical data" regarding administrative appeals, letters, and memorandum, simply attempts to revisit discovery issues that have already been decided. See ECF No. 91 (May 13, 2013 order denying plaintiff's motion to compel). The discovery deadline has long since passed. Plaintiff's indigent and pro se status does not, itself, satisfy the good cause requirement for modifying the schedule to allow for additional discovery.
Plaintiff's proposed witnesses include:
If plaintiff wishes for these witnesses to testify, it is his responsibility to obtain their presence at trial. Plaintiff is reminded of the requirements for obtaining the attendance of unincarcerated witnesses:
In addition to themselves, defendants anticipate calling the following witnesses:
Any party may call any witness identified by another party. No other witness will be permitted to testify. The court will, not later than six weeks before trial, issue all necessary writs to provide for plaintiff's attendance at trial.
Plaintiff expects to use the following exhibits at trial:
Defendants expect to use the following exhibits at trial:
The parties shall mail copies of their exhibits, schedules, and summaries and other items they anticipate offering into evidence to all other parties no later than twenty-eight days before trial.
Objections to a party's items sought to be introduced into evidence shall be filed twenty-one days before trial. Each item to which no pretrial objection is made will be forthwith received into evidence.
If defendants object to any of plaintiff's exhibits which purport to be copies of records from the California Department of Corrections and Rehabilitation on foundational grounds or otherwise dispute the authenticity of those copies, defendants shall subpoena or otherwise produce the custodians of the records for testimony at trial.
Plaintiff will use numbers to mark his exhibits; defendants will use letters.
The parties are directed to bring an original and one copy of each exhibit to trial.
Defendants intend to offer the following responses to discovery at trial for purposes of rebuttal and/or cross-examination:
The only anticipated motions are motions in limine and defendants' motion to bifurcate the claim of punitive damages.
None.
By way of summary judgment and motion to dismiss, defendants Wagner, Coe, Runnels, Meier, Barnes and Miranda have been dismissed from this action. The claims in this action have been narrowed to retaliation and all other claims have been dismissed. See ECF Nos. 35, 77, 98.
Defendants do not object to a settlement conference but believe that the expense of a settlement conference likely exceeds the settlement value of the case.
Defendants do not believe an agreed statement of facts is feasible given plaintiff's incarceration, his pro se status, and the fact that plaintiff and defendants dispute almost all of the pertinent facts in this case.
Defendants intend to file a motion to bifurcate the claim of punitive damages.
This is not a case which warrants the appointment of an impartial expert witness.
Plaintiff is proceeding pro se and attorney's fees are therefore not appropriate.
Defendants request that they be awarded attorney's fees pursuant to 42 U.S.C. § 1988 and costs of suit.
Any motions for costs or attorneys' fees shall be filed after judgment and timely presented in accordance with Local Rules 292 and 293.
Defendants request that the trial exhibits be kept pending the resolution of this case by appeal or until the time for appeal has run. The handling of trial exhibits will be within the discretion of the judge trying the case.
All parties have timely requested trial by jury.
Jury trial is scheduled to begin on December 8, 2014, at 9:00 a.m. in Courtroom No. 6, 14th Floor, before United States District Judge John A. Mendez. Although the parties do not provide a good faith estimate, it appears that the action will be submitted to a jury for verdict within two to three days.
The parties' proposed jury voir dire and proposed jury instructions (as described in Local Rules 162.1(a) and 163(a)) shall be lodged with the clerk and copies served on all parties no later than fourteen days before trial.
Each party is granted 30 days to object to this Pretrial Order. Any objections shall set forth the basis of the objections and any changes to be made. Each party is also granted 14 days thereafter to respond to the other party's objections. If no objections are made, the Pretrial Order will become final without further order of the court.
Pursuant to Federal Rule of Civil Procedure 16, the final pretrial order shall control the subsequent course of this action and will not be modified except according to its terms or to prevent manifest injustice.
So ordered
