ORDER ON WITNESSES AND EXHIBITS AT THE EVIDENTIARY HEARING and DISCHARGING AUGUST 8, 2016 ORDER FOR DEFENDANTS TO SHOW CAUSE

(Doc. 181)

SHEILA K. OBERTO, Magistrate Judge.

Plaintiff, Andrew R. Lopez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 10, 2010. This action is currently proceeding on Plaintiff's amended complaint, filed on March 23, 2012, against Defendants Garcia, Zamora, Espinosa, Jackson, Drew, Olmedo, Munoz, Fields, White, Rousseau, Martinez, Beer, Gray, Beard, and Gipson ("Defendants") for violating Plaintiff's federal constitutional rights. Plaintiff's claims arise out of his conditions of confinement at California State Prison, Corcoran ("CSP-Cor") in Corcoran, California in 2008 and 2009.

SCHEDULING OF THE EVIDENTIARY HEARING

The current status of this case has been over two years in the making. On May 21, 2014, Defendants filed a motion for summary judgment asserting that Plaintiff failed to exhaust available administrative remedies prior to filing this action. (Doc. 105.) Plaintiff filed his opposition after receiving an extension of time. (Doc. 118.) Defendants likewise received an extension of time and thereafter filed their reply. (Doc. 132.)

On March 23, 2015, the undersigned issued a Findings and Recommendation which recommended Defendants' motion for summary judgment be resolved on the majority of Plaintiff's claims, but found that a triable issue of fact existed to necessitate an evidentiary hearing on Plaintiff's retaliation claims against Defendants Garcia and Beer arising out of incidents alleged to have occurred on July 22, 2009, July 24, 2009, and September 30, 2009. (Doc. 137.) The District Judge adopted the Findings and Recommendations on May 19, 2015. (Doc. 141.) On July 24, 2015, an order issued setting a limited evidentiary hearing ("the Evidentiary Hearing") on Plaintiff's exhaustion of available administrative remedies as to his retaliation claims against Defendants Garcia and Beer, which was to set take place on October 22, 2015. (Doc. 143.)

The Evidentiary Hearing was rescheduled to March 3, 2016, at Defendants' request because Defendant Beer was scheduled to be on vacation on October 22, 2015. (Docs. 145, 147.) The March 3, 2016 Evidentiary Hearing date was vacated at the parties' request as Plaintiff had been unable to meet and confer with Defendants' counsel regarding witnesses and evidence due to Plaintiff's recent trial in another matter and his subsequent move to Pelican Bay State Prison. (Docs. 159, 160, 164.)

A telephonic conference was set for March 2, 2016, to discuss a new date for the Evidentiary Hearing. (Doc. 164.) In the telephonic conference, Plaintiff indicated that he was having difficulty obtaining access to his legal property which he needed for the Evidentiary Hearing. Defendants' counsel offered to contact the Litigations Coordinator at various prison facilities where Plaintiff believed his legal property might be and a further telephonic conference was set for March 9, 2016. (Doc. 166.)

During the March 9, 2016 telephonic conference, it was confirmed that the impediments to Plaintiff's access to his legal property had been resolved, and the parties agreed to the Evidentiary Hearing being rescheduled for August 24, 2016.1 (Doc. 169.)

On August 1, 2016, Plaintiff filed a motion to reschedule the Evidentiary Hearing indicating he believed it would interfere with his Parole Suitability Hearing, which is currently scheduled for October 25, 2016. (Doc. 177.) On August 8, 2016, Defendants filed a response to Plaintiff's motion and provided evidence to demonstrate that holding the Evidentiary Hearing on August 23, 2016, would not interfere with Plaintiff's Parole Suitability Hearing. (Doc. 182.) In that same filing, Defendants submitted a stipulation for Plaintiff to attend the Evidentiary Hearing via video conference. (Id.) An order issued on August 9, 2016, denying Plaintiff's motion to vacate the Evidentiary Hearing, approving the parties' stipulation for Plaintiff's appearance via video conference, and requiring Defendants to provide Plaintiff with a duplicate copy of exhibits to be used during the Evidentiary Hearing. (Doc. 183.) The Evidentiary Hearing will, therefore, proceed on August 23, 2016, and Plaintiff will appear via video conference.

WITNESS AND EXHIBITS

On March 16, 2016, a scheduling order for the Evidentiary Hearing ("the Scheduling Order") issued setting forth the parties' agreed-upon dates for the filing of motions and oppositions for incarcerated witnesses; requiring the parties to meet and confer to agree upon and identify witnesses and exhibits on or before July 22, 2016; and requiring defense counsel to submit joint copies of the exhibits and lists by no later than August 8, 2016. (Doc. 170.)

Plaintiff filed a timely motion requesting his and other incarcerated witnesses' attendance at the Evidentiary Hearing which was summarily granted as to Plaintiff, but denied as to all other incarcerated witnesses. (Docs. 172, 176.)

On August 5, 2016, Defendants filed their witness list, exhibit list, and four sets of their exhibits for use in the Evidentiary Hearing. (Docs. 179, 180.) An order issued on August 8, 2016 for Defendants to show cause why sanctions should not be imposed for their failure to comply with the Scheduling Order requiring the submission of joint lists of witnesses and exhibits and a joint set of exhibits. (Doc. 181.)

On August 10, 2016, Defendants filed their response to the order to show cause stating that when they met and conferred with Plaintiff about witnesses and exhibits, Plaintiff told defense counsel he was not prepared to discuss witnesses or exhibits for the Evidentiary Hearing and indicated he intended to file a motion to reschedule the Evidentiary Hearing. (Doc. 186.) As a result, Defendants only had the required information to file their own lists of witnesses and exhibits. (Id.) This satisfies the order that issued on August 8, 2016, which required Defendants to show why they should not be sanctioned for failing to comply with the Scheduling Order. (Doc. 181.) However, it also demonstrates that Plaintiff failed to comply with the Scheduling Order by not being prepared to discuss witnesses and exhibits with defense counsel to allow for the filing of joint lists of witness and exhibits.

To date, Plaintiff has filed neither a list of witnesses, nor exhibits that he intends to rely on at the Evidentiary Hearing. Rule 37 of the Federal Rules of Civil Procedure, authorizes district courts to impose a wide range of sanctions when a party fails to comply with the rules of Federal Civil Procedure or with court orders. Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983). The Local Rule which correspond with Rule 11 of the Federal Rules of Civil Procedure provides, "[f]ailure of counsel, or of a party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court." Local Rule 110. "District courts have inherent power to control their dockets," and in exercising that power, a court may impose sanctions even up to dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

Here, despite having had numerous months to prepare for the Evidentiary Hearing, Plaintiff was unprepared to meet and confer with defense counsel on witnesses and exhibits as required by the Scheduling Order. Plaintiff apparently instead chose to file a motion to vacate the Evidentiary Hearing for rescheduling at a later date. Plaintiff's motion to vacate the Evidentiary Hearing was completely unfounded — raising questions regarding his candor with the Court and his underlying motivation.

Given that Plaintiff is appearing pro se, rather than imposing terminating sanctions or a summary ruling in favor of Defendants Garcia and Beers on their motion for summary judgment, Plaintiff will be precluded from presenting any witnesses or exhibits which were not identified in compliance with the Scheduling Order or relied upon in opposition to Defendants' motion for summary judgment. Thus, Plaintiff may use the exhibits which Defendants properly identified (see Doc. 180) for the Evidentiary Hearing. Plaintiff may also use the exhibits which were found to raise a factual dispute regarding his efforts to exhaust available administrative remedies on his retaliation claims against Defendants Garcia and Beer relating to the events of June 22, 2009, June 24, 2009, and September 30, 2009. (See Doc. 137, 16:3-19:18.) The documents from Plaintiff's opposition to Defendants' motion for summary judgment which Plaintiff may present as exhibits are as follows:2

Plaintiff may also testify on his own behalf at the Evidentiary Hearing. However, since his motion for attendance of other incarcerated witnesses was denied, and he failed to file a witness list in compliance with the Scheduling Order, he may not call any witnesses other than those witness identified in the Defendants' witness list who appear at the hearing (see Doc. 179).

Accordingly, it is HEREBY ORDERED that:

IT IS SO ORDERED.