DALE A. DROZD, District Judge.
Plaintiff Christopher Harbridge is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Defendants Hall, Lee, and Tucker are represented by Deputy Attorney General Diana Esquivel. Pursuant to Federal Rule of Civil Procedure 16(e), the court now issues its final pretrial order.
Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 16, 2010. This action is proceeding to trial on Claim 17, as stated in plaintiff's second amended complaint, against defendants Hall, Lee, and Tucker for deliberate indifference of his serious medical need in violation of the Eighth Amendment.
The court has subject matter jurisdiction over this federal civil rights action. 28 U.S.C. § 1331. Venue is proper because the conduct allegedly occurred in this judicial district. 28 U.S.C. § 1391.
The parties demand a trial by jury. Fed. R. Civ. P. 38(b). The trial of this matter is scheduled to commence at
1. Plaintiff objects to the introduction of the Interdisciplinary Progress Notes dated 5-2-06 by defendant Hall on hearsay grounds and because the document was fabricated.
2. Plaintiff objects to introduction of the statement "Refused medical care until requesting ER attention tonight" found in the "Encounter Form" dated 5-5-06 by R.N. Engbrecht on hearsay grounds and because it is false.
3. Plaintiff objects to the testimony introduction of testimony of former defendants Benyamin and Ferro for the reasons stated in his motion in limine.
4. Plaintiff objects to the admittance of any testimony by the 10 expert witnesses listed in defendants' expert disclosures, or any other witnesses, pertaining to their "observation of plaintiff's behavior" for the reasons stated in plaintiff's motion in limine.
5. Plaintiff reserves the right to raise objections to other evidence presented by defendants.
1. Defendants object to plaintiff testifying about the diagnosis and prognosis of his left ankle injury and any residual effects of which he now complains. Defendants object that plaintiff is not qualified to give testimony about the cause and effect, diagnosis, or prognosis of his medical condition and that he is not qualified to interpret medical records.
2. Defendants intend to file motions in limine to preclude plaintiff from testifying, eliciting testimony, or introducing evidence of the following matters: (a) dismissed defendants and claims and unrelated claims and individuals; (b) defendants' involvement in other lawsuits, incidents, or inmate appeals alleging denial of medical care or other misconduct; (c) plaintiff's theories that defendants and their counsel conspired to fabricate evidence; (d) reference to other lawsuit suits, litigation, or court-orders involving defendants' attorneys; (e) offers to compromise; and (f) CDCR's indemnification of an adverse judgment.
3. Defendants will file a motion in limine to exclude all witnesses listed in plaintiff's pretrial statement absent an offer of proof that they have personal knowledge or relevant information about the events of May 2006.
4. Defendants will file a motion in limine to permit them to introduce evidence of plaintiff's and any incarcerated witness's felony conviction and length of sentence for impeachment purposes.
5. Defendants anticipate objecting to many of plaintiff's proposed trial exhibits, and will move to preclude plaintiff from using any document that was timely requested but not produced during discovery.
6. Defendants reserve the right to file any other motion in limine as issues may arise during pretrial and trial proceedings.
None.
Plaintiff seeks "three billion dollars" in compensatory damages, "three billion dollars" in punitive damages, court costs, trial costs, filing fees, attorney fees, and such further relief as the court deems proper.
Defendants seek judgment in this case and costs
The Civil Rights Act under which this action was filed provides:
42 U.S.C. § 1983.
Section 1983 provides a cause of action for the violation of plaintiff's constitutional rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To prevail on his inadequate medical care claim, plaintiff must demonstrate a link between actions or omissions of defendant and the violation of his Eighth Amendment rights; there is no respondeat superior liability under section 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Lemire v. California Dep't of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Moss v. U.S. Secret Service, 711 F.3d 941, 967-68 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010).
Prison officials violate the Eighth Amendment if they are "deliberate[ly] indifferen[t] to [a prisoner's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "A medical need is serious if failure to treat it will result in `"significant injury or the unnecessary and wanton infliction of pain."'" Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc)).
To maintain an Eighth Amendment claim based on alleged inadequate medical care in prison, a plaintiff must first "show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 (quotation marks omitted)).
As to the first prong, indications of a serious medical need "include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).
As to the second prong, deliberate indifference is "a state of mind more blameworthy than negligence" and "requires `more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference is shown where a prison official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. In medical care cases, this requires showing: (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). "A prisoner need not show his harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs." Jett, 439 F.3d at 1096, citing McGuckin, 974 F.2d at 1060.
Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). "Under this standard, the prison official must not only `be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person `must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "`If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Taylor v. Barkes, ___ U.S. ___, ____, 135 S.Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 566 U.S. 658, ____, 132 S.Ct. 2088, 2093 (2012)). Qualified immunity analysis requires two prongs of inquiry: "(1) whether `the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established' as of the date of the involved events `in light of the specific context of the case.'" Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) (quoting Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009). These prongs need not be addressed in a particular order. Pearson v. Callahan, 555 U.S. 223 (2009).
To determine whether a government official should be granted qualified immunity, under the first prong, the facts are to be viewed "in the light most favorable to the injured party." Chappell v. Mandeville, 706 F.3d 1052, 1058 (9th Cir. 2013) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson, 555 U.S. at 817-21; see also Bryan v. MacPherson, 630 F.3d 805, 817 (9th Cir. 2010)). However, the existence of a material factual dispute does not necessarily preclude a finding of qualified immunity. Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1053 (9th Cir. 2002).
Under the second prong, clearly established law is not to be defined "at a high level of generality." White v. Pauly, ___ S. Ct. ___, ____, 137 S.Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)); see also Mullenix v. Luna, ___ U.S. ____, 136 S.Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 742). "The dispositive question is `whether the violative nature of particular conduct is clearly established.'" Ibid. (emphasis added in Mullinex). "This inquiry `"`must be undertaken in light of the specific context of the case, not as a broad general proposition.'"'" Id., (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001))). "[G]eneral statements of the law are not inherently incapable of giving fair and clear warning" to officers, White, 137 S. Ct. at 552 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)), but "in the light of pre-existing law the unlawfulness must be apparent," Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "The relevant inquiry is whether existing precedent placed the conclusion that [the defendant] acted unreasonably in the [specific circumstances confronted] `beyond debate.'" Mullenix, 136 S. Ct. at 309 (quoting al-Kidd, 563 U.S. at 741).
"To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichel, 132 S. Ct. at 2092; see also Castro v. County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016). "When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law." al-Kidd, 563 U.S. at 743 (citation and internal quotation marks omitted). "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id. at 741. "[A] `robust consensus of cases of persuasive authority'" in the Courts of Appeals could establish the federal right [in question]." City and County of San Francisco v. Sheehan, ___ U. S. ___, ____, 135 S.Ct. 1765, 1778 (2015).
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 (2007). In order to award punitive damages, the jury must find that defendant's conduct was "motivated by evil motive or intent, or . . . involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1986). Acts or omissions which are malicious, wanton, or oppressive support an award of punitive damages. Dang v. Cross, 422 F.3d 800, 807-08 (9th Cir. 2005).
Federal Rules of Evidence 608 and 609 provide that evidence of a witness's prior felony conviction or instance of conduct demonstrating a propensity to lie may be used to impeach that witness's testimony.
The court previously granted summary judgment in favor of defendants Trimble, Brown, Reeves, Munoz, Singleton, McBride, Collier, Redding, Franco, and Herrera on all claims against them. (Doc. No. 128.) Consequently, these defendants have been dismissed from this action. Other than this, the parties have not abandoned any issues.
The following is a list of witnesses that the parties expect to call at trial, including rebuttal and impeachment witnesses.
1. Christopher Harbridge, plaintiff, (PVSP) (CDCR # K-61356)
2. D. Hall, defendant (may be contacted through his attorneys of record)
3. T. Lee, defendant (may be contacted through his attorneys of record)
4. W. Tucker, defendant (may be contacted through his attorneys of record)
It is noted that plaintiff identified inmate William Sutherland, CDCR #T-59697 in his Pretrial Statement list of witnesses. (Doc. 145, p. 11.) However, plaintiff did not list Sutherland in his motion for attendance of incarcerated witnesses. (Doc. 146.) Thus, plaintiff has failed to make the requisite showing to obtain inmate Sutherland's transport for appearance and may not call him as a witness at the trial in this matter.
The following is a list of documents or other exhibits that the parties expect to offer at trial. Plaintiff's exhibits are presented as [Date (Author) Description].
Plaintiff does not intend to offer at trial any answers to interrogatories, or responses to requests for admissions. Plaintiff does intend to offer at trial pages 152 to 206 of the transcripts from his deposition taken February 14, 2014, and the errata sheet pertaining to his deposition.
Defendants might use plaintiff's deposition transcript, taken on February 14, 2014, and his responses to interrogatories and admissions requests at trial for impeachment purposes.
None.
Plaintiff proposes stipulating to the facts he listed as undisputed in his pretrial statement.
Defendants are willing to stipulate to the authenticity of plaintiff's unaltered records from his central and medical files maintained by CDCR and any CDCR record generated and maintained in the regular course of business, which may be used as exhibits at trial. Defendants reserve the right to object to such exhibits on other grounds.
Plaintiff requests permission to serve former defendants Benyamin and Ferro and to reinstate Claims 19 and 21 as described in his motion in limine. (Doc. 145, p. 15.) To the extent plaintiff raises this request in his motions in limine, it will be addressed on the first day of trial. However, plaintiff also raised this issue in a motion (Doc. 147) he filed concurrently with his pretrial statement, which will be addressed by separate order of the court.
Defendants indicate that there are no amendments/dismissals.
An unsuccessful settlement conference was conducted by United States Magistrate Judge Stanley A. Boone. No additional settlement conference would appear likely to lead to resolution of this action and, therefore, none will be set.
Plaintiff is willing to stipulate to the facts that he lists as undisputed in his pretrial statement. In light of that position, defendants do not believe an agreed statement of facts is feasible.
Plaintiff requests a hearing to determine whether a written statement by R.N. Sheree Engbrecht is based on her personal knowledge or hearsay.
Defendants request bifurcation on the issue of the amount of punitive damages in the event the jury finds any defendant acted with malice, oppression, or in reckless disregard of plaintiff's constitutional rights.
Plaintiff requests the Court appoint "an impartial medical expert witness who is a podiatrist." (Doc. No. 145, p. 16.)
While the Court has the discretion to appoint an expert and to apportion costs, including the apportionment of costs to one side, Federal Rule of Evidence 706; Ford ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), where the cost would likely be apportioned to the government, the Court should exercise caution. The Court's docket is comprised of an overwhelming number of civil rights cases filed by prisoners proceeding pro se and in forma pauperis, and the facts of this case are no more extraordinary and the legal issues involved no more complex than those found in the majority of the cases now pending before the Court. Wilds v. Gines, No. C 08-03348 CW (PR), 2011 WL 737616, at *4 (N.D. Cal. Feb. 23, 2011); Honeycutt v. Snider, No. 3:11-cv-00393-RJC (WGC), 2011 WL 6301429, at *1 (D. Nev. Dec. 16, 2011) ("The appointment of experts in deliberate indifference cases is rare, and such requests should be granted sparingly, particularly given the large volume of cases in which indigent prisoners allege claims under the Eighth Amendment related to medical care, and the substantial expense defendants may have to bear if courts were to appoint experts in such cases.")
Moreover, the appointment of an expert witness under Rule 706 is intended to benefit the trier of fact, not a particular litigant, and here, the medical care issue is not of such complexity that the court requires the assistance of a neutral expert at the summary judgment stage. Faletogo, 2013 WL 524037, at *2; Bontemps v. Lee, No. 2:12-cv-0771 KJN P, 2013 WL 417790, at *3-4 (E.D. Cal. Jan. 31, 2013); Honeycutt, 2011 WL 6301429, at *1; Wilds, 2011 WL 737616, at *4; Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL 2228427, at *1 (E.D. Cal. Jun. 3, 2010).
Plaintiff provides no basis for appointment of an expert under Rule 706 and the Court finds none. Therefore, plaintiff's request for the Court to appoint a podiatric medical expert is denied.
None.
Neither side anticipates at this time that there will be a need for any special handling of trial exhibits.
Defense counsel SHALL retain the exhibits pending any appeal in this action.
Neither side intends to seek a protective order. Defendants do not believe one is necessary as no confidential information will be disclosed during trial.
Any party may file a motion in limine, which is a procedural mechanism to limit in advance testimony or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (quotation marks omitted). In the case of a jury trial, the court's ruling gives plaintiff and defendant's counsel advance notice of the scope of certain evidence so that admissibility is settled before attempted use of the evidence before the jury. Id. at 1111-12 (quotation marks omitted).
Any motion in limine must be served on the other party, and filed with the court by
Any opposition to a motion in limine must be served on the other party, and filed with the court by
Motions in limine will be heard on the morning of the first day of trial.
The court does not favor the filing of motions in limine addressing evidentiary issues that may not actually arise at trial. Moreover, motions in limine often cannot be ruled upon until other evidence has been admitted at trial and the context for the evidence in question is established.
The parties are relieved of their obligation under Local Rule 285 to file a trial brief. If the parties wish to submit a trial brief, they must do so on or before
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
The court will prepare the jury instructions, which the parties will have the opportunity to review on the morning of trial. Defendant shall file proposed jury instructions as provided in Local Rule 163 on or before
The parties shall use Ninth Circuit Model Civil Jury Instructions to the extent possible. Otherwise, BAJI or CACI instructions may be used where the subject of the instruction is covered by BAJI or CACI. All instructions shall be short, concise, understandable, and neutral and accurate statements of the law. Argumentative or formula instructions will not be given and must not be submitted. Quotations from legal authorities without reference to the issues at hand are unacceptable.
The parties shall, by italics or underlining, designate any modification of instructions from statutory or case authority, or any pattern or form instruction, such as the Ninth Circuit Model Jury Instructions, BAJI, CACI, or any other source of pattern instructions. The parties must specifically state the modification made to the original form instruction and the legal authority supporting the modification.
The court will not accept a mere list of numbers of form instructions from the Ninth Circuit Model Jury Instructions, CACI, BAJI, or other instruction forms. The proposed jury instructions must be in the form and sequence which the parties desire to be given to the jury. All blanks to form instructions must be completed. Irrelevant or unnecessary portions of form instructions must be omitted.
All jury instructions shall indicate the party submitting the instruction (e.g., plaintiff or defendant), the number of the proposed instruction in sequence, a brief title for the instruction describing the subject matter, the text of the instruction, and the legal authority supporting the instruction. Defendant shall provide the court with a copy as well as a clean copy (without number, title or authority) of his proposed jury instructions via e-mail at: dadorders@caed.uscourts.gov.
Proposed voir dire questions, if any, shall be filed on or before
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 original and two copies of all trial exhibits, along with exhibit lists, shall be submitted to Courtroom Deputy Renee Gaumnitz no later than
Jury trial is set for May 2, 2017 at 1:00 p.m. in Courtroom 5 before the Honorable Dale A. Drozd. Trial is anticipated to last for two to three days. The parties are directed to Judge Drozd's standard procedures available on his webpage on the court's website.
Counsel are to call Renee Gaumnitz, courtroom deputy, at (559) 499-5652, one week prior to ascertain the status of the trial date.
Written objections to the pretrial order, if any, must be filed on or before
Compliance with this order and its explicit requirements is mandatory. The court will strictly enforce the requirements of this pretrial order, and counsel and parties are subject to sanctions for failure to fully comply with this order and its requirements. The court will modify the pretrial order "only to prevent manifest injustice." Fed. R. Civ. P. 16(e). The court admonishes the parties and counsel to obey the Federal Rules of Civil Procedure and the court's Local Rules and orders. Failure to do so will subject the parties and/or counsel to sanctions as the court deems appropriate.
IT IS SO ORDERED.
