STANLEY A. BOONE, Magistrate Judge.
This Court conducted a telephonic pretrial conference on December 5, 2016. Plaintiff Louis Branch appeared pro se, and Christina Gruenberg appeared on behalf of Defendants D. Umphenour, L. Szalai, and J. Alvarez. This action is proceeding against Defendants Umphenour, Szalai, and Alvarez for failure to protect Plaintiff in violation of the Eighth Amendment and against Defendant Umphenour for retaliation in violation of the First Amendment. 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, 1334. Venue is proper because a substantial part of the events or omissions on which the claim is based occurred in this District.
On July 14, 2016, Plaintiff filed a motion to disqualify the undersigned. (ECF No. 216.) On July 21, 2016, an order issued denying Plaintiff's request for disqualification finding that Plaintiff provided no basis for disqualification other than his disagreement with rulings made by the assigned magistrate judge which does not demonstrate bias against him or favoritism toward Defendants. (ECF No. 218.)
In his pretrial statement, Plaintiff disputes the Court's jurisdiction contending that he seeks disqualification of the undersigned for "`judicial usurpation of power'; willful abuses of judicial discretion; and manifest injustice." (ECF No. 259 at 1.) Motions to disqualify or recuse a judge fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C. § 455. Section 144 provides for recusal where a party files a timely and sufficient affidavit averring that the judge before whom the matter is pending has a personal bias or prejudice either against the party or in favor of an adverse party, and setting forth the facts and reasons for such belief.
A judge finding a section 144 motion timely and the affidavits legally sufficient must proceed no further and another judge must be assigned to hear the matter. 28 U.S.C. § 144;
Under section 455 a motion to recuse must be decided by, the very judge whose impartiality is being questioned."
Under both recusal statutes, the determination for disqualification is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned."
In this instance, Plaintiff has not provided an affidavit and does not allege that recusal is required due to bias. Plaintiff seeks recusal based upon his conclusory allegations of "`judicial usurpation of power'; willful abuses of judicial discretion; and manifest injustice." The Court has considered the reasons set forth in section 455 which would require recusal and finds no basis upon which recusal would be required in this matter. The Court thereby denies Plaintiff's motion for recusal.
Trial will begin on
The following facts are undisputed:
1. Plaintiff is a convicted felon, serving a life sentence.
2. Plaintiff was housed at Avenal State Prison ("ASP") from May to August 2004.
3. Defendants Umphenour, Szalai, and Alverez, were all employed at ASP in 2004.
4. On July 11, 2004, Defendants Umphenour, Szalai and Alvarez were working third watch (2:30 p.m. to 10:30 p.m.) in Housing Unit 250 in Facility II at ASP.
5. At approximately 4:25 p.m., Sergeant Wicks was informed that Plaintiff was attempting to purchase a weapon from another inmate on the Facility II Yard.
6. Upon Sergeant Wick's request, Defendant Umphenour paged Plaintiff over the public address system and asked him to report to the podium.
7. Plaintiff approached the podium with blood running down the side of his face.
8. During a search of the area, Sergeant Wicks found an inmate manufactured weapon in a trash can located on the "A" side of Housing Unit 250. Sergeant Wicks did not believe that this weapon was the weapon utilized on Plaintiff because the inmate manufactured weapon was flat metal stock, whereas the wounds sustained by Plaintiff appeared to have come from a round object.
9. Plaintiff was hospitalized and eventually placed in the Administrative Segregation Unit.
10. Sergeant R. Wicks discovered an inmate manufactured weapon capable of inflicting a mortal wound in a trash can adjacent to the dormitory Plaintiff was housed in.
1. In May 2003, ASP officials and J. Mejia, California Department of Corrections and Rehabilitation ("CDCR") Headquarters Classification Services Representative, machinated Plaintiff's placement in Soledad Prison with Plaintiff's documented enemy gang member.
2. Plaintiff, accurately predicted to Soledad Psychologist, B. Gammard how, when and where Soledad Officials would wantonly expose Plaintiff to a substantial risk of serious harm from his documented enemy gang member.
3. As Plaintiff predicted, prison officials orchestrated a confrontation between Plaintiff and his enemy gang member in the Central Infirmary.
4. Plaintiff eschewed a physical altercation.
5. Plaintiff's habeas corpus petition to the Monterey Superior Court resulted in an order which compelled Plaintiff's November 2003 placement in Folsom Prison.
6. Folsom Captain O. Acuna granted Plaintiff's request for a placement recommendation to Vacaville or San Quentin.
7. However, Folsom Counselor J. Elison forged Acuna's signature and confederated with the same J. Mejia from CDCR Headquarters to inappropriately deny Plaintiff's placement in Vacaville or San Quentin.
8. Plaintiff and his mother filed citizen complaints against Elison's fraudulent machinations with J. Mejia.
9. Elison arranged for Plaintiff's May 2004 placement at ASP in a clear violation of the Director's placement protocols.
10 In fear for his safety and life at ASP, Plaintiff declined to exit his cell to board the transportation bus to ASP.
11 However, Folsom officials forcibly removed Plaintiff from his cell and transported him to ASP.
12. ASP's Facility 2 Initial Classification Hearing agreed that Plaintiff's placement at ASP was inappropriate and referred Plaintiff's cause to the Warden's Classification Representative for remedial action for the violation of the Director's protocols.
13. In June 2004, at ASP, Plaintiff submitted a sworn Declaration to Warden S. Powers attesting to have witnessed Officer Dunn assault and batter prisoner Hawkins without legitimate cause.
14. Several days later, Plaintiff and Defendant Umpbenour had a confrontation.
15. Defendant Umpbenour's answer did not raise an affirmative defense regarding the undisputed confrontation.
16. Defendant Umpbenour alleged he issued a chronological report (chrono) against plaintiff for possession and use of tobacco as the reason for the undisputed confrontation.
17. Plaintiff alleged Defendant Umpbenour threatened that Plaintiff would be, "Dealt with!!" for submitting a "false" declaration to Warden S. Powers.
18. Defendant Umpbenour's alleged chrono has not been produced/disclosed and two comprehensive searches of Plaintiff's case records by Solano Prison Counselor B. Davis has failed to discover Defendant Umpbenour's chrono.
19. Immediately after the undisputed confrontation Plaintiff was rehoused six times in three weeks from Housing Units (HU) and from Facility 2 to Facility 4 and back to Facility 2.
20. Facility captains arranged the transfers and were fully cognizant of Plaintiff's "case factors".
21. On July 10, 2004, Plaintiff was rehoused from the Facility 2 Gymnasium to HU 250 where Defendants were assigned to supervise.
22. On July 11, 2004, at 1545 hours, Plaintiff admonished the Facility 2 Lieutenant and Sergeant of experiencing escalating tension from HU 250 inmates and requested to be rehoused to the gym.
23. The Facility 2 Lieutenant granted Plaintiff's request and notified HU 250 officer, Defendant Umphenour that Plaintiff would be rehoused to the Facility 2 gym after the 1645 institutional count.
24. On July 11, 2004, at 1615-1620 hours, on the HU 250 main dayroom floor and during the supervision of Defendants Alvarez, Szalai, and Omphenour, Plaintiff was repeatedly stabbed, beaten and bludgeoned about the head by HU 250 inmates in an attempted murder.
25. During the attempted murder: electronic alarms were not activated; whistles were not blown; radios did not transmit an alarm; and no orders were given to the inmate assailants to desist.
26. The inmate assailants were not apprehended, identified nor held accountable for their attempted murder of Plaintiff.
27. Defendant Umphenour gathered, inventoried, and packed Plaintiff's personal property in boxes he sealed with tape.
28. Plaintiff was inappropriately ordered placed in Mule Creek Prison.
29. Mule Creek officials documented that when they unsealed the personal property Defendant Umphenour had packed and sealed, they discovered Plaintiff's property had been "sabotaged".
30. Mule Creek Counselor B.·Heise obtained the 07/11/2004 incident report log ASP FA2 04 07 0160 of the attempted murder from ASP.
31. In January 2005 Mule Creek officials machinated an approval for Plaintiff's return placement to ASP.
32. Office of Internal Affairs Special Agent Laura Woods arrived at Mule Creek and opened a formal investigation of the 07/11/2004 attempted murder of Plaintiff at ASP.
33. Special Agent Woods caused the approved return placement of Plaintiff at ASP to be rescinded.
34. On 07/07/2008, Plaintiff filed the 42 USC § 1983 complaint alleging the Avenal Warden, Chief of Inmate Appeals, Chief of Classification Services, Correctional Officers Alvarez, Szalai and Umphenour were partisans to a policy &.custom of retaliation that violated Plaintiff's First, Eighth and Fourteenth Amendments of the Federal Constitution.
35. The Court established June 21, 2014 as the cut-off date for the parties to conduct discovery.
36. However, in August 2014, counsel for Defendants submitted a sworn affidavit attesting to have "discovered" two 07/11/2004 chronos containing the affirmative defense of Alvarez and Szalai.
37. Defendants' dilatory affirmative defense chronos claimed that during the attempted murder of Plaintiff: Defendant Umphenour (sworn summary judgment affidavit) was patrolling the opposite side of HU 250; Defendant Alvarez was exiting the staff restroom; and Defendant Szalai was in the office preparing the institutional count.
38. Defendants' affirmative defenses were not raised in their answers (Docs. 107 & 116).
39. Additionally, Defendants' affirmative defense claims were not contemporaneously documented in accordance with CDCR mandated policy in the Dept. Operations Manual, Chapter 5, Adult Custody and Security Operations, Article 3. Incident Report §§51030.1-51030.6.1.
40. Further, Defendants Alvarez and Szalai did not sign their dilatory affirmative defense chronos.
41. Moreover, Defendants Alvarez and Szalai fail and refuse to identify the alleged prison official whose signature is affixed to their dilatory affirmative defense chronos.
42. Defendants Alvarez, Szalai, and Umphenour did not disclose the information contained in their 07/11/2004 affirmative defense chronos before their counsel's alleged "discovery" of that information in Plaintiff's case records.
43. Most importantly, the information contained in Defendants' affirmative defense claims are absolutely novel within the whole of CDCR operations, procedures and protocols and have not been previously disclosed to nor corroborated by any CDCR official.
44. Defendants' exhaustion of administrative remedies affirmative defense remedies in their motion for summary judgment is based on fraud, perjury and subornation of perjury.
45. At Soledad Prison it was discovered that Plaintiff had been exposed to a substantial risk of serious harm by the surreptitious placement of his documented enemy gang member in the prison's general population.
46. Plaintiff's enemy was providentially apprehended, housed in segregation and subsequently placed in another prison.
47. Plaintiff has been repeatedly exposed to substantial risks of serious harm by CDCR Classification Services.
1. Around 4:30 p.m., Sergeant Wicks called Defendant Umphenour and informed him that he was looking for an inmate on Facility II who was attempting to buy a weapon from another inmate. Defendant Umphenour returned to the officer's podium after receiving the call.
2. Sergeant Wicks instructed Correctional Officer Landeros to handcuff, pat search, and escort Plaintiff to the Facility II Program Office because he suspected that Plaintiff may have been involved in a fight.
The following facts are disputed:
1. Premise —.tobacco contraband vs. reprisal threat — for undisputed confrontation between Defendant Umphenour and Plaintiff.
2. Notice (PC §2079) to Warden re: Plaintiff's safety concerns.
3. Failure to process staff complaint re: Officer Perez.
4. Incident Report re: 2004 Avenal Facility 4 Sex Offender Murder.
5. Cognizance by Defendants for the attempted murder of Plaintiff.
6. Defendants machination of the attempted murder of Plaintiff.
7. Assailants were Defendants' inmate gang member agents.
8. Integrity of Defendants' alibi chronological reports.
9. Lieutenant Marmelejo's land line call informing Defendant Umphenour of Plaintiff's transfer placement to the gymnasium housing unit upon clearance of the institutional count.
10. Sergeant Wick's alleged "tight" observation.
11. Pervasive knowledge among the inmate general population of the identity of Plaintiff's assailants.
12. Defendant Umphenour's expropriation, distribution and "sabotage" of Plaintiff's personal property.
13. Allegation that Plaintiff attempted to purchase an inmate manufactured weapon.
14. Allegation that Plaintiff was attacked for attempting to purchase an inmate manufactured weapon.
15. Sergeant Wick's land line call to Defendant Umphenour admonishing Defendant Umphenour that Wicks had information of weapon purchase.
16. Inappropriate 2004 placement at ASP from Folsom Prison in violation of CDCR protocols.
17. Identity of the alleged prison officials whose signature is affixed to Defendants Alvarez and Szalai's July 11, 2004 alibi chronological reports.
1. Whether Defendant Umphenour was aware of any declaration that Plaintiff allegedly submitted in support of another inmate's grievance.
2. Whether Defendant Umphenour called Plaintiff a "baby rapist" or a "snitch."
3. Whether Plaintiff was assaulted in full view of Defendants, and whether Defendants failed to intervene.
4. Whether Defendants were aware of the assault on Plaintiff before Sergeant Wicks instructed Defendant Umphenour to summon Plaintiff to the officer's podium using the public address system.
5. What injuries Plaintiff sustained from the incident, if any.
The following evidentiary issues are disputed:
1. Defendants' testimony to any alleged factual information and/or evidence not recorded in the officially mandated crime/incident report — motion in limine.
2. Holographic display of the crime scene located in ASP Facility 2, Housing Unit 250's Main Dayroom Floor.
3. Plaintiff's criminal history — motion
4. Plaintiff's disciplinary history — motion
5. Defendants' exhaustion of administrative remedies exhibits in support of their 138 motion for summary judgment is prima facie evidence of spoliation, fraud, perjury, and subornation of perjury.
Currently, Defendants do not know precisely which evidence Plaintiff intends to rely on at trial because he has not yet filed his Pretrial Statement.
Plaintiff submits the following as special factual information:
Plaintiff is seeking damages for discovery misconduct sanctions; compensation for litigation costs and labor; damages for physical, emotional and mental pain and anguish; damages for "reprehensible" conduct of recklessness, malice and deceit; and property damage.
Defendants contend that Plaintiff is not an attorney, and is therefore not entitled to attorney's fees. As Plaintiff is not entitled to attorney's fees under 42 U.S.C. §1988, and Defendants as government employees are not entitled to fees either, attorney's fees are not at issue here.
"Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights."
Under section 1983, a plaintiff must prove that (1) each defendant acted under color of state law and (2) each defendant deprived him of rights secured by the Constitution or federal law.
The treatment a prisoner receives in prison and the conditions under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment.
However, not every injury suffered by an inmate at the hands of another results in a prison official's liability for violation of the Eighth Amendment.
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.
In order to prevail on his retaliation claim, a plaintiff must prove that his protected conduct was "the `substantial' or `motivating' factor behind the defendant's conduct.
In order to recover punitive damages, the plaintiff has the burden of proving what, if any, punitive damages should be awarded by a preponderance of the evidence. NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS § 5.5 (2008). The jury must find that the defendants' conduct was "motivated by evil motive or intent, or . . . involves reckless or callous indifference to the federally protected rights of others."
Defendants do not anticipate any stipulations at this time but will attempt to meet and confer with Plaintiff regarding potential stipulations.
Plaintiff seeks to file a fourth amended complaint. On October 5, 2016, an order issued denying Plaintiff's request to file an amended pleading. To the extent that Plaintiff is seeking reconsideration of that order, under Rule 60(b) of the Federal Rules of Civil Procedure, a district court may grant relief from its previous orders in the following circumstances: "(1) mistake, inadvertence, surprise, or excusable neglect; . . . or [¶] (6) any other reason that justifies relief." "A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law."
Further, requests for reconsideration are also governed by Local Rule 230(j) which states:
Plaintiff has set forth no grounds for the court to reconsider the order denying his motion to file an amended complaint. Accordingly, Plaintiff's motion to file an amended complaint is denied.
No amendments are requested by Defendants.
There have been no settlement negotiations. Plaintiff has failed to make a settlement demand, and the mandatory settlement conference was vacated after Plaintiff stated that he refused to attend the mandatory settlement conference in person.
Plaintiff objects to this statement on the ground that the settlement judge vacated the settlement conference because it refused to conduct the conference in accordance with the Civil Rights of Institutionalized Persons Act; and also Defendants did not make a settlement offer.
Presentation of all or part of this action upon an agreed statement of facts is unlikely, given the factual disputes between the parties.
Defendants request to bifurcate the issue of punitive damages, in order to avoid the unnecessary and/or premature admission of evidence regarding Defendants' net worth. Additionally, there is only one incident at issue, so no other separate trial of issues is recommended.
As is this Court's standard practice, the Court will bifurcate the issue of punitive damages. If the jury finds that any defendant is liable for punitive damages, the Court will conduct a second phase of trial on the amount of punitive damages.
Plaintiff requests appointment of experts. The district court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal Rules of Evidence, which reads, in part, "[t]he court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed. . . ." Fed. R. Evid. 706(a);
Expert testimony is governed by Rule 702 of the Federal Rules of Evidence which provides that an expert witness may testify if "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702(a). In this action, the trier of fact is being asked to determine if the Defendants failed to protect Plaintiff from other inmates and if Defendant Umphenour retaliated against Plaintiff. As evidenced from the pretrial statements of the parties, the factual issues to be decided in this action will largely require credibility findings based on the testimony of the individual witnesses. Given the claims that are proceeding to trial in this action, the Court does not find, and Plaintiff has not identified, any evidence or fact in issue for which an expert opinion would assist the jury in determining. Accordingly, Plaintiff's request for appointment of an expert witness is denied.
Defendants do not believe limitation of witnesses is needed.
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. 215), the deadline for service and filing of motions
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:
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 (i.e., Bates stamp numbering), then the exhibit must be page numbered. This requirement that exhibits be pre-marked applies both to evidence that will be formally admitted into evidence as well as any other exhibits that will be presented in any manner during trial, such as "demonstrative" evidence. Each individual "original" exhibit that will be submitted to the jury must be stapled/fastened so that the exhibit does not become separated. Further, exhibits submitted to the jury must be pre-marked on the front page
No later than
Because Plaintiff is incarcerated, he shall submit his exhibits to the Litigation Coordinator at the Institution where he is incarcerated, on or before the above-referenced deadline. The exhibits exchanged shall be pre-marked by each party and correctly exhibited in the format described in Part XIII.C.1, above.
Defendants are required to submit trial exhibits for both parties in binders. As noted above, Defendants 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.
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 defendants' counsel after completion of the trial. The defendants' 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.
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 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.
Any party may file and serve written objections to any of the provisions of this order on or before
IT IS SO ORDERED.
During the December 5, 2016 pretrial conference, Plaintiff raised the issue of his inability to call witnesses because he was unable to pay witness fees to bring his witnesses to the trial. The Court notes that Plaintiff was provided with deadlines to file motions for the attendance of incarcerated and non-incarcerated witnesses
Further, Plaintiff was provided with the procedure to procure unincarcerated witnesses who refuse to testify voluntarily. A motion was required to be filed by December 5, 2015. Plaintiff did not file a timely motion to obtain the attendance of unincarcerated witnesses. Plaintiff asserted at the pretrial hearing that rather than filing a motion to obtain witnesses he filed a request for appointment of counsel. To the extent that Plaintiff's current request is construed as a motion for waiver of the requirement that Plaintiff pay witness fees, the
