(PC) Hackworth v. Arevalos

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 ROBERT HACKWORTH, Case No.: 1:19-cv-01362-KES-CDB 12 Plaintiff, TENTATIVE PRETRIAL ORDER 13 v. Deadlines: 14 E. AREVALOS, Objections to pretrial order: July 23, 2024 15 Defendant. Motion in Limine Filing: September 4, 2024 Oppositions: September 18, 2024 [16] Proposed Jury Instructions, Verdict Forms, and 17 Voir Dire: September 25, 2024 Objections: October 2, 2024 [18] Exhibits due to Court: October 10, 2024 [19] Jury trial: October 16, 2024, at 8:30 a.m., Courtroom 6 [21] 22 On July 8, 2024, the court conducted a final pretrial conference. Plaintiff Robert 23 Hackworth appeared pro se. Matthew Ross Wilson appeared as counsel for defendant E. 24 Arevalos. This matter is set for a jury trial on October 16, 2024, at 8:30 a.m. in Courtroom 6 25 before District Judge Kirk E. Sherriff. Having considered the parties’ pretrial statements and 26 views, the court issues this tentative pretrial order. 27 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 1 against defendant alleging First Amendment retaliation and Eighth Amendment failure to protect 2 from a serious risk of harm. 3 I. JURISDICTION/ VENUE 4 Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343. Jurisdiction is not contested. 5 The events at issue took place in Kern County, California. Accordingly, venue is proper pursuant 6 to 28 U.S.C. § 1391 (b). Venue is also not contested. 7 II. JURY TRIAL 8 Both parties demand a jury trial. The jury will consist of eight jurors. 9 III. UNDISPUTED FACTUAL ISSUES1 10 1. Plaintiff was in the custody of the California Department of Corrections and 11 Rehabilitation (CDCR) and was incarcerated at the Substance Abuse Treatment 12 Facility (SATF) at all times relevant to this lawsuit. 13 2. Defendant was employed as a correctional officer at SATF at all times relevant to this 14 lawsuit. 15 3. On March 1, 2018, defendant was working as the control booth officer in plaintiff’s 16 housing unit. 17 4. On March 1, 2018, the warehouse manager at the prison called plaintiff’s housing unit 18 to discuss with him a package that plaintiff ordered which was missing. Defendant 19 was the officer who took the phone call from the warehouse manager concerning 20 plaintiff’s 602 grievance, filed that day, regarding the missing package. 21 5. Defendant claimed that later that same day, March 1, 2018, plaintiff committed 22 indecent exposure. Defendant charged plaintiff on March 1, 2018, with a rule 23 violation for indecent exposure. 24 6. Plaintiff was subsequently kept in the IEX (Indecent Exposure) program for 129 days. 25 7. On March 16, 2018, CDCR referred plaintiff to the county district attorney based on the 26 alleged indecent exposure. [27] 1 In plaintiff’s pretrial statement, some of the asser tions he lists as undisputed facts appear to be disputed by defendant. Certain of plaintiff’s asser tions are included here as undisputed facts; the 1 8. The district attorney declined to charge plaintiff. 2 9. On May 10, 2018, CDCR found the rule violation against plaintiff for alleged indecent 3 exposure was unproven. 4 10. On November 14, 2018, plaintiff was involved in a physical altercation with two other 5 inmates. 6 IV. DISPUTED FACTUAL ISSUES 7 Plaintiff identifies the following disputed factual issues: 8 1. Whether plaintiff and defendant had an argument on March 1, 2018, after defendant 9 hung up the phone after talking to the warehouse manager regarding plaintiff’s 602 10 grievance involving the missing package. 11 2. On March 1, 2018, after the hearing on plaintiff’s grievance regarding the missing 12 package wherein plaintiff agreed to have the package resent, defendant stated to 13 plaintiff that she “should have that one sent back [too]” and plaintiff replied to 14 defendant “I’ll 602 your fat ass.” 15 3. After plaintiff told defendant he would “602 her fat ass,” defendant then falsely 16 accused plaintiff of masturbating to her on March 1, 2018. 17 4. Defendant’s accusation was made in retaliation for plaintiff telling defendant he would 18 “602 her fat ass.” 19 5. Defendant told Officer Lara that she thought plaintiff was masturbating. 20 6. On March 1, 2018, plaintiff was removed from the general population yard and placed 21 in administrative segregation because defendant falsely accused plaintiff of 22 masturbating to her that day. 23 7. Plaintiff was placed in a sex offender IEX program as a result of defendant’s false 24 claim against him on March 1, 2018. 25 8. Defendant subsequently changed her story to the investigator on May 8, 2018. 26 9. Plaintiff was kept in the IEX program for 129 days due to defendant’s false claim 27 made in retaliation for plaintiff’s statement to defendant that he would “602 her fat 1 10. Plaintiff was jumped and battered and stabbed by other inmates on November 14, 2 2018, because of defendant’s false claim made in retaliation that plaintiff masturbated 3 to her on March 1, 2018. 4 11. Inmate Andre L. Revis has information about the argument between plaintiff and 5 defendant that occurred on March 1, 2018. 6 12. Plaintiff never masturbated toward defendant. 7 13. Plaintiff never made the statement that Sergeant Brainard placed in his 837 report. 8 Defendant identifies the following disputed factual issues: 9 1. Whether plaintiff had an argument with defendant on March 1, 2018, and threatened to 10 file an inmate grievance based on the argument. 11 2. Whether plaintiff engaged in indecent exposure. 12 3. Whether defendant charged plaintiff with indecent exposure in retaliation for 13 plaintiff’s threatening to submit a grievance. 14 4. Whether plaintiff was attacked on November 14, 2018, because defendant informed 15 inmates that plaintiff had masturbated to her. 16 5. The scope and extent of any alleged injuries suffered by plaintiff. 17 6. Whether plaintiff sustained any compensable damages. 18 V. DISPUTED LEGAL ISSUES 19 None listed. 20 VI. DISPUTED EVIDENTIARY ISSUES 21 Plaintiff identifies the following evidentiary issues: 22 1. Any 115 (rule violation) forms that date back five years before 2018. 23 2. The admissibility of the transcript of plaintiff’s deposition. Plaintiff asserts that he 24 never got a chance to correct any mistakes by the transcriber, and he asserts these 25 issues should be addressed in a motion in limine. 26 Defendant states she is unaware of any disputed evidentiary issues. 27 /// 1 VII. MOTIONS IN LIMINE 2 The purpose of a motion in limine is to establish in advance of the trial that certain 3 evidence should or should not be admitted at trial. The court will grant a motion in limine 4 precluding use of evidence only if the moving party establishes that the evidence clearly is not 5 admissible for any valid purpose. The court does not encourage the filing of motions in limine 6 unless they are addressed to issues that can realistically be resolved by the court prior to trial and 7 are not contingent upon other evidence which will be introduced by the parties at trial. 8 In advance of filing any motion in limine, counsel SHALL meet and confer to determine 9 whether they can resolve any disputes and avoid filing motions in limine. 10 Any motions in limine the parties intend to file must be filed with the court no later than 11 September 4, 2024. The motion must clearly identify the nature of the evidence that the moving 12 party seeks to have admitted or seeks to prohibit the other side from offering at trial. Any 13 opposition to the motion must be served on the other party and filed with the court no later than 14 September 18, 2024. After reviewing the motions and any opposition briefs, the court will notify 15 the parties if a reply brief is necessary. As such, parties shall not file any reply briefs without 16 court approval. The court will also notify the parties if it will hear argument on any motions in 17 limine prior to the first day of trial. The parties are reminded they may still object to the 18 introduction of evidence during trial. 19 VIII. SPECIAL FACTUAL INFORMATION 20 Special factual information pursuant to Local Rule 281(b)(6) is applicable to this action. 21 Neither party provided a response regarding this section. The court provides the following 22 summary based on the parties’ pretrial statements and the pleadings in this case: 23 Plaintiff alleges that on March 1, 2018, he and defendant argued and plaintiff threatened to file a grievance against defendant. 24 Plaintiff further alleges that, also on March 1, 2018, defendant falsely alleged that plaintiff committed indecent exposure later that 25 day. Defendant charged plaintiff with a rule violation for indecent exposure. Plaintiff was subsequently kept in the IEX (Indecent 26 Exposure) program for approximately 129 days. Ultimately, CDCR found the rule violation for alleged indecent exposure was 27 unproven. Defendant maintains that plaintiff committed indecent exposure, denies making a false cla im regarding plaintiff, and [1] On November 14, 2018, plaintiff was involved in a physical 2 altercation with two other inmates. Plaintiff alleges that he was attacked by other inmates on November 14, 2018, because of 3 defendant’s claim that plaintiff had committed indecent exposure. Defendant denies that she is responsible for the altercation between 4 plaintiff and other inmates on November 14, 2018. 5 Plaintiff argues that defendant retaliated against him based on plaintiff’s exercise of his First Amendment right to make a 6 grievance, and that defendant also violated a duty under the Eighth Amendment to protect him from a serious risk of harm. Defendant 7 denies retaliating against plaintiff and maintains that she complied with the duty to protect plaintiff. [8] 9 IX. RELIEF SOUGHT 10 1. Plaintiff 11 Plaintiff seeks $525,000 in compensatory damages and $125,000 in punitive damages. 12 2. Defendant 13 Defendant seeks judgment in her favor and an award of costs. 14 X. POINTS OF LAW 15 The claims and defenses arise under federal law. Plaintiff’s claims are brought solely 16 against defendant Arevalos. 17 (1) The elements of, standards for, and burden of proof in a cause of action under 42 18 U.S.C. § 1983 for retaliation based on the exercise of a First Amendment right to 19 file a grievance. 20 (2) The elements of, standards for, and burden of proof in a cause of action for failure 21 to protect under the Eighth Amendment pursuant to 42 U.S.C. § 1983 . 22 (3) The elements of, standards for, and burden of proof for an award of punitive 23 damages. 24 (4) The elements of, standards for, and burden of proof for the affirmative defense of 25 qualified immunity. 26 1. Plaintiff’s additional points of law 27 Plaintiff provides the following additional points of law: Rangolan v. County of Nassau, 370 F.3d 23 9, 245-47 (2d Cir. 2004) (affirming $300,000 1 for past pain and suffering); and Mathie v. Fries, 121 F.3d 808, 813-17 (2d Cir. 1997) ($250,000 2 compensatory and $200,000 punitive damages for course of sexual abuse by jail official). 3 Doc. 122 at 4. Plaintiff alleges: “Here in plaintiff[’s] case these two case[s] [are] what defendant 4 did to plaintiff (1) defendant lie[d] [about] plaintiff to get plaintiff charged with a sex offense 5 which amounts to sexual abuse by a jail official[,] (2) Defendant told other inmates that plaintiff 6 had masturbated to her [to] get plaintiff beat[en] & stab[bed] in the face.” Id. 7 Plaintiff also cites to Surprenant v. Rivas, 424 F.3d 5, 12 (1st Cir. 2005) (noting jury 8 award of punitive damages of $5500 for accusing officer and $15,000 for hearing officer in case 9 of trumped-up disciplinary charge). He alleges: “Here this is [exactly] what happen[ed] in this 10 case before the court.” Id. 11 2. Defendant’s additional points of law 12 Defendant provides the following additional points of law: 13 a. Retaliation Claim 14 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 15 petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th 16 Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. 17 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First 18 Amendment retaliation entails five basic elements; (1) An assertion that a state actor took some 19 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 20 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 21 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559 , 56722 68 (9th Cir. 2005). A plaintiff bears the burden of pleading and proving the absence of legitimate 23 correctional goals for the conduct of which he complains. Id.; Pratt, 65 F.3d at 806 (noting that a 24 prisoner’s First Amendment rights are necessarily curtailed for legitimate correctional reasons). 25 b. Failure to Protect Claim 26 The Eighth Amendment requires prison officials to take reasonable measures to guarantee 27 prisoner safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994). That includes a duty to protect 1 While prison officials have a duty to protect prisoners from violence at the hands of other 2 prisoners, not “every injury suffered by one prisoner at the hands of another . . . translates into 3 constitutional liability for prison officials responsible for the victim’s safety.” Farmer, 511 U.S. 4 at 833 . “[A] prison official cannot be found liable under the Eighth Amendment for denying an 5 inmate humane conditions of confinement unless the official knows of and disregards an 6 excessive risk to inmate health or safety; the official must both be aware of facts from which the 7 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 8 inference.” Id. at 837. 9 When a prisoner seeks to hold a prison employee individually liable because another 10 prisoner attacked him, the prisoner must establish individual fault. Leer v. Murphy, 844 F.2d 628 , 11 634 (9th Cir. 1988). In other words, a plaintiff must submit sufficient evidence from which a 12 reasonable jury could conclude that the officer’s deliberate indifference was the actual and 13 proximate cause of the deprivation of Eighth Amendment rights. Id. There must be evidence 14 from which a jury could reasonably infer that the defendant knowingly failed to protect plaintiff 15 from a serious risk harm where the defendant had a reasonable opportunity to intervene. 16 c. Qualified Immunity 17 Qualified immunity protects government officials from damages in a civil action unless 18 Plaintiff shows that the defendant’s conduct violates “clearly established statutory or constitutional 19 rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 , 818 20 (1982). In determining a claim of qualified immunity, the court determines whether the defendant’s 21 conduct violated a constitutional right, and if so, whether the right was clearly established. Saucier v. 22 Katz, 533 U.S. 194 , 201 (2001); Pearson v. Callahan, 555 U.S. 223, 231 (2009). The court may make 23 this inquiry in any order it deems suitable to the case. Pearson, 555 U.S. at 231 . “The relevant, 24 dispositive inquiry in determining whether a right is clearly established is whether it would be clear to 25 a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. 26 at 202. 27 d. Damages 1 To recover compensatory damages, a plaintiff must prove that a violation of his constitutional 2 rights actually caused him injury. Carey v. Piphus, 435 U.S. 247, 263 (1978). Plaintiff also had a duty 3 to mitigate his damages, if any. 4 ii. Punitive Damages 5 Plaintiff cannot recover punitive damages unless he demonstrates a defendant’s conduct was 6 malicious, oppressive or in reckless disregard of his rights. NINTH CIRCUIT CIVIL JURY INSTRUCTION 7 NO. 5.5; see Smith v. Wade, 461 U.S. 30, 56 (1983). Plaintiff must prove more than that the defendant 8 may have acted in an objectively unreasonable manner; the defendant’s subjective state of mind must 9 be assessed. Wulf v. City of Wichita, 883 F.2d 842, 867 (10th Cir. 1989). He must show the conduct 10 was accompanied by ill will or spite; was undertaken for the sole purpose of injuring the Plaintiff or 11 with complete indifference to the Plaintiff’s safety or rights; or that the conduct violated Plaintiff’s 12 rights with unnecessary harshness or severity. NINTH CIRCUIT CIVIL JURY INSTRUCTION NO. 5.5. 13 Where plaintiff presents no evidence that a § 1983 defendant acted with evil intent, then he has no 14 legal right to recover punitive damages. Ward v. City of San Jose, 967 F.2d 280, 286 (9th Cir. 1991). 15 e. Impeachment by Prior Felony Conviction 16 In the event plaintiff testifies at trial, the jury is entitled to consider his credibility. Rule 609 17 of the Federal Rules of Evidence provides that evidence of a witness’s prior felony conviction may be 18 used to impeach that witness’s testimony. See United States v. Bernal-Obeso, 989 F.2d 331, 336 (9th 19 Cir. 1993) (“As any trial lawyer knows, felony convictions trench heavily upon such a person’s 20 credibility”). See also NINTH CIRCUIT CIVIL JURY INSTRUCTION NO. 2.9 (Impeachment evidence). 21 ANY CAUSES OF ACTION OR AFFIRMATIVE DEFENSES NOT EXPLICITLY 22 ASSERTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW AT THE TIME IT 23 BECOMES FINAL ARE DISMISSED AND DEEMED WAIVED. 24 XI. ABANDONED ISSUES 25 None.2 [26] 2 Plaintiff states that his claims against L.T. Sthol and Sgt. Brainard are abandoned. These [27] d efendants were dismissed from the action on Dec ember 30, 2022, after the court granted their motion for summary judgment for failure to exhau st administrative remedies. See Doc. 89. 1 XII. WITNESSES 2 Plaintiff’s witnesses shall be those listed in Attachment A.3 Defendant’s witnesses shall 3 be those listed in Attachment B. Each party may call any witness designated by the other. 4 Plaintiff timely moved for the appearance of witness Andre Rivas (Docs. 119, 121), and the court 5 granted plaintiff’s motion (Doc. 123). 6 The court does not allow undisclosed witnesses to be called for any purpose, including 7 impeachment or rebuttal, unless they meet the following criteria: 8 a. The party offering the witness demonstrates that the witness is for the purpose of 9 rebutting evidence that could not be reasonably anticipated at the pretrial conference, or 10 b. The witness was discovered after the pretrial conference and the proffering party 11 makes the showing required in paragraph c, below. 12 c. Upon the post pretrial discovery of any witness a party wishes to present at trial, the 13 party shall promptly inform the court and opposing parties of the existence of the unlisted witnesses 14 so the court may consider whether the witnesses shall be permitted to testify at trial. The witnesses 15 will not be permitted unless: 16 i. The witness could not reasonably have been discovered prior to the discovery 17 cutoff; 18 ii. The court and opposing parties were promptly notified upon discovery of the 19 witness; 20 iii. If time permitted, the party proffered the witness for deposition; and 21 iv. If time did not permit, a reasonable summary of the witness’s testimony was 22 provided to opposing parties. 23 /// 24 /// [25] 26 3 In his pretrial statement, plaintiff identifies the following witnesses: Inmate Andre L. Revis; PJ Mejia, MSS II; Officer Lara; Officer G. Alvarez; and L.T. J. Amaya. Doc. 122 at 4. Plaintiff [27] t imely moved for the appearance of witness Revis, which the court granted. See Doc. 123. Plaintiff did not move for the appearance of the rem aining witnesses as required by the amended 1 XIII. EXHIBITS, SCHEDULES, AND SUMMARIES 2 a. Exhibit Lists 3 The parties shall file their exhibit lists by October 2, 2024. 4 b. Exhibits 5 Plaintiff’s exhibits are listed in Attachment C. Defendant’s exhibits are listed in 6 Attachment D. 7 The parties shall serve one (1) copy of their trial exhibits on the other party by no later than 8 September 25, 2024. Objections to exhibits shall be filed on or before October 2, 2024. In 9 making any objection, the party is to set forth the grounds for the objection. If there is no 10 objection to an exhibit, no further foundation will be required for it to be received into evidence. 11 The parties’ exhibits shall be marked as follows: 12 1. Joint exhibits shall be identified as “JX” and listed numerically (e.g., JX-1, JX-2). 13 2. Plaintiff’s exhibits shall be pre-marked and numbered numerically (e.g., Ex. 1, 14 Ex. 2). 15 3. Defendant’s exhibits shall be pre-marked and numbered alphabetically (e.g., Ex. A, 16 Ex. B). 17 Defense counsel shall prepare three (3) separate exhibit binders for use by the court, with a 18 side tab identifying each exhibit in accordance with the specifications above. Each binder shall 19 have an identification label on the front and spine. The exhibit binders, along with exhibit lists, 20 shall be submitted to Courtroom Deputy Victoria Gonzales no later than October 10, 2024. 21 c. Use of Undisclosed Exhibits 22 The court will not admit exhibits other than those identified on the exhibit lists 23 referenced above unless: 24 1. The party proffering the exhibit demonstrates that the exhibit is for the purpose of 25 rebutting evidence that could not have been reasonably anticipated, or 26 2. The exhibit was discovered after the issuance of this order and the proffering party 27 makes the showing required in paragraph a, below. 1 promptly inform the court and opposing parties of the existence of such 2 exhibits by filing a notice on the docket so that the court may consider their 3 admissibility at trial. The exhibits will not be received unless the proffering 4 party demonstrates: 5 i. The exhibits could not have reasonably been discovered earlier; 6 ii. The court and the opposing parties were promptly informed of their 7 existence; and 8 iii. The proffering party forwarded a copy of the exhibits (if physically 9 possible) to the opposing party. If the exhibits may not be copied, the 10 proffering party must show that it has made the exhibits reasonably 11 available for inspection by the opposing party. 12 XIV. DISCOVERY DOCUMENTS 13 The following is a list of discovery documents that the parties expect to offer at trial. 14 NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS 15 SECTION, MAY BE ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A 16 SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST 17 INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(12). 18 a. Plaintiff’s Proposed Discovery to be Proffered at Trial 19 E. Arevalos’s Response to Plaintiff’s Request for Admissions, Set One 20 E. Arevalos’s Response to Plaintiff’s Request for Admissions, Set Two 21 b. Defendant’s Proposed Discovery to be Proffered at Trial 22 Plaintiff’s deposition. The docket reflects a notice of lodging of plaintiff’s 23 deposition (Doc. 78), but the court has no record the transcript was received (see docket). 24 Defense counsel must lodge with the Clerk of Court no later than October 2, 2024, 25 plaintiff’s deposition transcript to be used at trial. 26 XV. FURTHER DISCOVERY OR MOTIONS 27 No further discovery is sought by either party. Defendant states she will move for 1 at the close of evidence, if appropriate. 2 XVI. STIPULATIONS 3 The parties confirmed at the pretrial conference that they are willing to stipulate as to the 4 authenticity of CDCR documents to avoid the need for testimony at trial from custodians of 5 records. 6 XVII. AMENDMENTS/DISMISSALS 7 None. 8 XVIII. SETTLEMENT 9 The parties participated in settlement conferences on August 24, 2021, and August 15, 10 2023. Both resulted in an impasse. The parties indicated at the pretrial conference that a further 11 settlement conference may be useful. Accordingly, the assigned magistrate judge will set a 12 settlement conference in this case. 13 XIX. JOINT STATEMENT OF THE CASE 14 The parties did not provide a joint statement of the case. The court has drafted the following 15 neutral statement of the case to be read to the prospective jurors: 16 Plaintiff claims that, following a verbal dispute between plaintiff and defendant in which plaintiff threatened to file a grievance 17 against defendant, defendant retaliated against him by filing a false report alleging plaintiff committed indecent exposure. 18 Plaintiff also claims that defendant leaked the false allegation of indecent exposure to inmates, which led to inmates assaulting 19 plaintiff. Plaintiff claims that defendant retaliated against him in violation of his First Amendment right to make a grievance, and 20 that defendant violated her Eighth Amendment duty to protect plaintiff from a serious risk of harm. Defendant denies that she 21 made a false report regarding plaintiff and denies retaliating against plaintiff. Defendant also maintains that she was not 22 responsible for the inmate attack on plaintiff and that she complied with the duty to protect plaintiff. [23] 24 XX. SEPARATE TRIAL OF ISSUES 25 Defendant requests that the trial be bifurcated, with the issue of punitive damages being 26 tried separately, if necessary, following resolution of the liability phase. The trial will be 27 bifurcated with respect to the amount of punitive damages, if necessary. Should a jury find 1 consist of any evidence and argument with respect to the appropriate amount of punitive 2 damages. The parties may not present evidence regarding the amount of punitive damages until 3 the second phase of the trial. 4 XXI. IMPARTIAL EXPERTS/LIMITATIONS OF EXPERTS 5 None. 6 XXII. ATTORNEYS’ FEES 7 Plaintiff, who is proceeding pro se, is not entitled to attorney’s fees. Kay v. Ehrler, 499 8 U.S. 432, 435 (1991). Defendant will seek an award of attorney’s fees and costs as appropriate. 9 XXIII. TRIAL PROTECTIVE ORDER AND REDACTION OF TRIAL EXHIBITS 10 Special handling of prison records and photographs may be appropriate as to any 11 confidential information where disclosure may compromise the safety and security of the 12 institution, staff, or other inmates. 13 If defendant is required to disclose information concerning her financial status, she will 14 request that the court issue a protective order concerning this information, under Local Rule 15 141.1(b)(2). 16 XXIV. MISCELLANEOUS 17 None. 18 XXV. ESTIMATED TIME OF TRIAL/TRIAL DATE 19 Jury trial is set for October 16, 2024, at 8:30 a.m. in Courtroom 6 before District Judge 20 Kirk E. Sherriff. Trial is anticipated to last 3-4 days. Defense counsel is directed to call Victoria 21 Gonzales, courtroom deputy, at (559) 499-5676, one week prior to trial to ascertain the status of 22 the trial date and to communicate this information to the litigation coordinator at the institution 23 where plaintiff resides. 24 XXVI. PROPOSED JURY VOIR DIRE, JURY INSTRUCTIONS, AND VERDICT FORM 25 a. Proposed Jury Voir Dire 26 i. The parties shall file any proposed jury voir dire by September 25, 2024. 27 Each party will be limited to twenty minutes of jury voir dire, unless they 1 b. Proposed Jury Instructions and Proposed Jury Verdict Form 2 i. The court directs the parties to meet and confer, if possible, to 3 generate a joint set of jury instructions and a joint verdict form. The 4 parties shall file any such joint set of instructions by September 25, 2024, 5 identified as “Joint Jury Instructions.” The parties shall file any agreed 6 upon verdict form as “Joint Proposed Verdict Form.” If the parties cannot 7 agree upon certain specific jury instructions and/or the verdict form, 8 defendant shall file proposed jury instructions and a proposed verdict form 9 as provided in Local Rule 163 by September 25, 2024. Plaintiff is not 10 required to file proposed jury instructions or a proposed verdict form, but if 11 he wishes to do so, he must file them by September 25, 2024. 12 ii. The parties shall indicate on any proposed jury instructions or proposed 13 verdict form the party submitting the proposed instructions or verdict form 14 (i.e., joint, plaintiff’s, or defendant’s). 15 iii. The parties shall also include on all proposed jury instructions the 16 following: 17 a. The number of the proposed instruction in sequence. 18 b. A brief title for the instruction describing the subject matter. 19 c. The complete text of the instruction. 20 d. The legal authority supporting the instruction. 21 e. The parties shall, by italics or underlining, designate any modification 22 from statutory or case authority, or any pattern or form instruction, or 23 any other source of pattern instructions. 24 f. The parties must specifically state the modification made to the original 25 form instruction and the legal authority supporting the modification. 26 g. All blanks in form instructions should be completed and all brackets 27 removed. 1 iv. Ninth Circuit Model Jury Instructions shall be used where the subject of 2 the instruction is covered by the model instructions, including for all 3 standard instructions. State model jury instructions, such as BAJI or CACI 4 instructions, shall be used where applicable as to state law claims. The 5 parties shall designate, by italics or underlining, any proposed modification 6 of instructions from any pattern instruction, such as the Ninth Circuit 7 Model Civil Jury Instructions or other pattern instructions, or from 8 statutory or case authority. The parties must specifically state the 9 modification made to the standard instruction and the legal authority 10 supporting the proposed modification. All instructions shall be short, 11 concise, understandable, neutral, and accurate statements of the law. 12 Argumentative instructions will not be given and must not be submitted. 13 v. Defendant shall e-mail a copy of all proposed jury instructions and any 14 proposed verdict form, whether agreed or disputed, other than a jury 15 instruction or verdict form proposed solely by plaintiff, as a Word 16 document to kesorders@caed.uscourts.gov no later than September 25, 17 2024. 18 c. Objections to proposed jury instructions 19 i. The parties must file any objections to proposed jury instructions by October 20 2, 2024. Each objection shall identify the challenged instruction and shall 21 provide a concise explanation of the basis for the objection along with citation 22 of authority. When applicable, the objecting party shall submit an alternative 23 proposed instruction on the issue or identify which of his or her own proposed 24 instructions covers the subject. 25 XXVII. TRIAL BRIEFS 26 The parties are relieved of their obligation under Local Rule 285 to file a trial brief. If any 27 party wishes to file a trial brief, they must do so by September 25, 2024. 1 | XXVIII. USE OF ELECTRONIC EQUIPMENT IN COURTROOM 2 The electronic equipment and resources available for this trial may differ from the 3 || equipment and resources available in other courtrooms and may even differ from the equipment 4 | and resources available in this courtroom at another time. It is the responsibility of the parties to 5 | familiarize themselves with the equipment and resources available for use in this trial prior to the 6 | commencement of trial. If any party is unfamiliar with the equipment and resources available for 7 | use in this trial, that party may be ordered to proceed without the aid of such equipment and 8 || resources and/or may be sanctioned for any fees, costs, or expenses associated with any delay. 9 | XXIX. OBJECTIONS TO TENTATIVE PRETRIAL ORDER 10 The parties must file objections, if any, to this Tentative Pretrial Order by July 23, 2024. 11 | The parties may file a response to the other party’s objections by July 30, 2024. If no objections 12 | are filed, this order will become final without further order of this court. The parties are reminded 13 | that pursuant to Rule 16(e) of the Federal Rules of Civil Procedure and Local Rule 283 of this 14 | court, this pretrial order will control the subsequent course of this action and shall be modified 15 || only to prevent manifest injustice. 16 | XXX. COMPLIANCE WITH PRETRIAL ORDER 17 Strict compliance with this order and its requirements is mandatory. The court will 18 | enforce the requirements of this pretrial order, and counsel and parties are subject to sanctions for 19 | failure to comply fully with this order and its requirements. The court will modify the pretrial 20 | order “only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). The court ADMONISHES the 21 || parties and counsel to obey the Federal Rules of Civil Procedure, the Local Rules, and the court’s 22 | orders. Failure to do so will make the parties and/or counsel subject to sanctions. [23] 94 | □□ □□ SO ORDERED. _ 25 Dated: _ July 9, 2024 4h UNITED STATES DISTRICT JUDGE [28] 1 ATTACHMENT A: Plaintiff’s Witnesses [2] 3 Percipient Witnesses [4] 5 1. Plaintiff Hackworth 6 2. Andre L. Revis, CDCR No. V-97325, c/o Kern Valley State Prison [27] 1 ATTACHMENT B: Defendant’s Witnesses [2] 3 Percipient Witnesses 4 1. Defendant Arevalos 5 2. Correctional Officer Lara 6 3. Lieutenant Brainard 7 4. Lieutenant Stohl 8 5. Officer Knight 9 6. Licensed Vocational Nurse Smith 10 7. Custodian of records regarding central and medical files 11 8. Plaintiff Robert Hackworth 12 9. Dr. Patel [13] 14 Expert Witness 15 1. Dr. Patel [27] 1 ATTACHMENT C: Plaintiff’s Exhibits 2 1. CDCR Form 602, concerning missing package, SATF-C-18-740 (Exhibit 1, Doc. 122 3 at 9–12) 4 2. CDCR Form 602, concerning retaliation by Arevalos, SATF-Z-18-1390 (Exhibit 2, 5 Doc. 122 at 14–22) 6 3. Administrative Segregation Unit Placement dated March 1, 2018, signed by D. Stohl 7 (Exhibit 3, Doc. 122 at 24) 8 4. CDCR Forms 115 and 837 authored by Arevalos (Exhibit 4, Doc. 122 at 26–27) 9 5. Administrative Segregation Unit lock up order dated March 5, 2018 (Exhibit 5, Doc. 122 10 at 29) 11 6. Disciplinary Hearing Results, by Lt. Amaya (Exhibit 6, Doc. 122 at 31–39) 12 7. Investigative Report, by Officer Alvarez dated May 8, 2018 (Doc. 122 at 41–42) 13 8. Crime/Incident Report by Officer Lara (Doc. 122 at 40) 14 9. CDCR Form 602, CSP-Corcoran 18-2912 (Exhibit 7, Doc. 122 at 44–49) 15 10. Indecent Exposure Pilot Program at California State Prison, Corcoran Memorandum dated 16 November 11, 2017 (Exhibit 8, Doc. 122 at 51–56) 17 11. Classification Committee Chrono dated June 1, 2018 (Exhibit 9, Doc. 122 at 58–59) 18 12. CDCR Form 602, SATF-C-184064, CSP-Corcoran 18-2655 (Exhibit 10, Doc. 122 at 61– 19 65) 20 13. District Attorney referral dated March 16, 2018; rejection dated April 12, 2018 (Exhibit 21 11, Doc. 122 at 67–68) 22 14. Declaration of Andre L. Revis, CDCR No. V-97325 (Exhibit 12, Doc. 122 at 70–71) 23 15. Administrative Segregation Unit Placement by C. Livingston dated November 14, 2018, 24 Identify Safety and/or Enemy Concerns by R. Martinez dated November 14, 2018, and 25 Medical Report of Injury by A. Mueller dated November 14, 2018 (Exhibit 13, Doc. 122 26 at 73–75) 27 16. E. Arevalos’s Responses to Plaintiff’s Request for Admission, Sets One and Two (Exhibit 14, Doc. 122 at 82–85) 1 ATTACHMENT D: Defendant’s Exhibits [2] 3 1. Rule violation report regarding Plaintiff, Log Number 04554030 4 2. Crime/Incident reports regarding Plaintiff, Log Number SATF-0003-18-03-0111 5 3. Chrono regarding altercation involving Plaintiff, dated November 14, 2018 6 4. Plaintiff’s medical records 7 5. Plaintiff’s abstracts of judgment for the offenses for which he is currently incarcerated 8 from his central file