(PC) Harris v. Munoz

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GRADY HARRIS, No. 2:16-cv-0830-TLN-SCR 12 Plaintiff, 13 v. AMENDED FINAL PRETRIAL ORDER 14 JEFF MACOMBER, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding without counsel in this civil rights action filed 18 pursuant to 42 U.S.C. § 1983 . Upon review of the parties’ pretrial statements, the remainder of 19 the file, and the objections to the initial pretrial order, this Court makes the following findings and 20 orders:1 21 JURISDICTION/VENUE 22 This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343(a)(3) 23 because Plaintiff asserts an Eighth Amendment claim. Venue is appropriate in the Eastern District 24 of California, Sacramento Division, under 28 U.S.C. § 1391 (b)(2) because the incident giving rise 25 to the claim occurred in this judicial district. [26] 1 As explained in the concurrently filed order addressing Plaintiff’s motions (ECF Nos. 231 & 27 232), this order is amended to include the full and accurate names of three of Plaintiff’s incarcerated witnesses. In all other respects, it is unchanged from the Final Pretrial Order filed at 28 ECF No. 229. 1 SETTLEMENT NEGOTIATIONS 2 The parties attended a settlement conference on February 29, 2024 which did not result in 3 settlement. It appears that a further settlement conference is not warranted. 4 JURY/NON-JURY 5 All parties have demanded a jury trial. Accordingly, this matter shall be tried before a 6 jury. The Court shall empanel eight (8) jurors. 7 UNDISPUTED FACTS 8 1. At all times relevant, Plaintiff was a state prisoner in the custody of the California 9 Department of Corrections and Rehabilitation (“CDCR”) and housed at California State Prison10 Sacramento (“CSP-SAC”). 11 2. On November 21, 2014, Defendants were acting under color of law as Correctional 12 Officers at CSP-SAC. 13 3. At approximately 12:10 p.m., Defendants Munoz and Fong were assigned to escort 14 Plaintiff across the yard at Facility C. 15 4. At some point, Defendants Williamson and Leavitt joined the escort. 16 5. During the escort, Plaintiff was physically restrained by one or more correctional 17 officers. 18 6. At approximately 12:15 p.m., Plaintiff was seen by C. Teachout, LVN, who completed 19 a CDCR Form 7219 Medical Report of Injury or Unusual Occurrence based on the incident. 20 7. Plaintiff was charged and found guilty of a Rules Violation Report (“RVR”) for 21 Battery on a Peace Officer, due to his conduct against Defendant Munoz during this prison escort. 22 DISPUTED FACTUAL ISSUES 23 1. What, if any, force each Defendant used against Plaintiff during the escort. 24 2. Whether any forced used against Plaintiff by any Defendant was excessive. 25 3. Whether Defendant Leavitt witnessed any use of force against Plaintiff. 26 4. Whether Defendant Leavitt could have prevented any use of force against Plaintiff. 27 5. What, if any, injuries did Plaintiff suffer as a result of the force used by any 28 Defendant. 1 6. If liability is found as to any Defendant, whether punitive damages are authorized 2 under the facts of this case. 3 SPECIAL FACTUAL INFORMATION IN TORT ACTION FOR PERSONAL INJURY 4 A. Plaintiff’s version of the November 21, 2014 incident is that while escorting him 5 across the yard, Defendants Munoz, Fong, and Williamson lifted him off his feet, pushed him to 6 the ground, and then punched and kicked him maliciously to cause him harm. He further 7 contends that Defendant Leavitt was present during the escort and failed to intercede when the 8 use of force occurred. 9 B. Defendants’ version is that during the escort Plaintiff turned and tried to head-butt 10 Munoz, and then Plaintiff shoved his elbow into Munoz’s chest. At that point, Munoz used his 11 physical strength to force Plaintiff to the ground and restrain him there. Defendant Fong was 12 escorting Plaintiff with Munoz, but did not use any physical force on Plaintiff. Defendant 13 Williamson was present, but also did not use any physical force on Plaintiff. Defendant Leavitt 14 denies being in the area or that he used any force on Plaintiff. Williamson assisted Plaintiff to his 15 feet after the incident, and continued escorting Plaintiff to the prison medical clinic for an 16 evaluation. 17 C. Plaintiff was age 37 at the time of the incident. A medical evaluation by an LVN 18 shortly after the incident found that Plaintiff had an abrasion on his left cheek, and an abrasion 19 with redness and bleeding at his left shoulder. Plaintiff was not hospitalized, and does not appear 20 to have had any further medical care for his injuries. Because he is a state prisoner, Plaintiff has 21 no economic loss for medical expenses or lost wages. 22 RELIEF SOUGHT 23 In the second amended complaint, Plaintiff seeks compensatory damages of $10,000 per 24 Defendant. In addition, Plaintiff seeks punitive damages of $10,000 and exemplary damages of 25 $10,000 per Defendant. 26 Defendants seek judgment in their favor along with an award of costs. 27 POINTS OF LAW 28 Trial briefs shall be filed with this court no later than fourteen days prior to the date of 1 trial in accordance with Local Rule 285. 2 WITNESSES 3 A. The parties both anticipate calling the following witnesses in this action: 4 1. Plaintiff Grady Harris; 5 2. Defendant Fong; 6 3. Defendant Munoz; 7 4. Defendant Leavitt; 8 5. Defendant Williamson; 9 6. Correctional Officer M. Thompson; 10 7. Correctional Officer D. Calderon; 11 8. Correctional Officer T. Fuller; 12 9. Correctional Officer E. Cervantes; 13 10. Correctional Officer B. Vielbig; 14 11. Sergeant K. Rose; 15 12. Correctional Officer S. Givens; and, 16 13. C. Teachout, LVN. 17 B. Plaintiff anticipates calling the following witnesses: See ECF Nos. 176, 195, 208. 18 1. Inmate Jayshawn Visa Pierce (#G40746); 19 2. Inmate Raymond Carl Johnson (#K65390); 20 3. Inmate Morris Gene Ervin (#D30491); 21 4. Inmate Tylo Felix (#G56081); 22 5. Andrew Nelson2; 23 6. Former Inmate Jaquan Jones; 24 7. Former Inmate Michael Bricker; 25 8. Former Inmate Nathan Carlson; [26] 2 Plaintiff removed this witness from his Amended Pretrial Statement Witness List and did not 27 provide any declaration as to this witness’s prospective testimony. ECF No. 195. Therefore, the Court will not issue a writ of habeas corpus ad testificandum or subpoena for this witness to 28 attend trial. 1 9. Larry Fink, Private Investigator; 2 10. Jeff Macomber, Warden of CSP-Sac; and, 3 11. Correctional Officer Valazquez. 4 C. Defendants’ additional prospective witnesses are: 5 1. Records Custodian for Plaintiff’s central file records maintained by CDCR; and, 6 2. Records Custodian for Plaintiff’s Unit Health Records maintained by CDCR. 7 D. No other witness will be permitted to testify unless: (1) the party offering the witness 8 demonstrates that the witness is for the purpose of rebutting evidence which could not be 9 reasonably anticipated at the pretrial conference, or (2) the witness was discovered after the 10 pretrial conference and the proffering party makes the showing required in section E below. 11 E. Upon the post-pretrial discovery of witnesses, the party shall promptly inform the 12 Court and opposing parties of the existence of the unlisted witnesses so that the Court may 13 consider at trial whether the witnesses shall be permitted to testify. The witnesses will not be 14 permitted unless: (1) the witnesses could not reasonably have been discovered prior to pretrial; 15 (2) the Court and the opposing party were promptly notified upon discovery of the witnesses; (3) 16 if time permitted, the party proffered the witnesses for deposition; and (4) if time did not permit, a 17 reasonable summary of the witnesses’ testimony was provided to the opposing party. 18 TRIAL EXHIBITS 19 A. Plaintiff seeks to introduce the following as potential trial exhibits: 20 1. The second amended complaint (ECF No. 96); 21 2. An unidentified “online article of prison officer’s death;” 22 3. Plaintiff’s Health Care Service Request forms; 23 4. Diagram or map of prison yard; 24 5. Plaintiff’s Comprehensive Accommodation Chrono for a medical appliance; and, 25 6. Plaintiff’s medical records related to his injuries. 26 B. Defendants anticipate offering the following as potential trial exhibits: 27 1. Surveillance videotape footage of a portion of the events in dispute; 28 2. Photographs of the areas where the events in dispute happened; 1 3. Form 7219 Medical Report of Injury or Unusual Occurrence for Plaintiff, 2 completed by C. Teachout, LVN on November 21, 2014; 3 4. Form 7219 Medical Report of Injury or Unusual Occurrence for Defendant 4 Munoz, completed by C. Teachout, LVN on November 21, 2014; 5 5. CDCR Form 837 Crime / Incident Report including Cover Sheet, Supplements and 6 all Staff Reports; 7 6. Records of Rules Violation Report Log No. C14-11-054 for Plaintiff’s battery on a 8 peace officer, for his actions during the events in dispute; 9 7. Records of the abstracts of judgment for Plaintiff’s felony convictions; 10 8. Records of the abstracts of judgment for felony convictions of any inmate 11 witnesses; 12 9. Text of California Code of Regulations, Title 15, section 3268 (Use of Force); 13 10. Declaration of Custodian of Records for Plaintiff’s central file records maintained 14 by CDCR; and, 15 11. Declaration of Custodian of Records for Plaintiff’s Unit Health Records (medical 16 records) maintained by CDCR. 17 C. Plaintiff’s exhibits shall be listed numerically. Defendants’ exhibits shall be listed 18 alphabetically. The parties shall use the standard exhibit stickers provided by the Court Clerk’s 19 Office: pink for Plaintiff and blue for Defendants. After three letters, note the number of letters in 20 parenthesis (i.e., “AAAA(4)”) to reduce confusion during the trial. All multi-page exhibits shall 21 be fastened together and each page within the exhibit shall be numbered. All photographs shall 22 be marked individually. The list of exhibits shall not include excerpts of depositions which may 23 be used to impeach witnesses. 24 D. Each party may use an exhibit designated by the other. In the event that Plaintiff and 25 Defendants offer the same exhibit during trial, that exhibit shall be referred to by the designation 26 the exhibit is first identified. The Court cautions the parties to pay attention to this detail so that 27 all concerned will not be confused by one exhibit being identified with both a number and a letter. 28 E. The Court will not permit introduction of other exhibits unless: (1) the party proffering 1 the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence which could not 2 be reasonably anticipated at the Pretrial Conference, or (2) the exhibit was discovered after the 3 Pretrial Conference and the proffering party makes the showing required in paragraph “F” below. 4 F. Upon the post-pretrial discovery of exhibits, the attorneys shall promptly inform the 5 Court and opposing counsel of the existence of such exhibits so that the Court may consider at 6 trial their admissibility. The exhibits will not be received unless the proffering party 7 demonstrates: (1) the exhibits could not reasonably have been discovered prior to pretrial; (2) the 8 Court and the parties were promptly informed of their existence; (3) the proffering party 9 forwarded a copy of the exhibit(s) (if physically possible) to the opposing party. If the exhibit(s) 10 may not be copied, the proffering party must show that he or she has made the exhibit(s) 11 reasonably available for inspection by the opposing party. 12 G. The parties shall exchange their exhibits by mail 30 days in advance of trial. Each 13 party will file any objections to exhibits fourteen days before trial. Each exhibit not previously 14 objected to will be forthwith received into evidence. 15 H. The parties are directed to bring an original and one copy of each exhibit to trial. The 16 original exhibit becomes the property of the court for purposes of trial. The copy is for bench use 17 during trial. 18 I. It is the duty of counsel to ensure that witnesses have access to a copy of exhibit(s) if 19 needed. 20 TRIAL PROTECTIVE ORDER 21 No such order is requested by any party. 22 DISCOVERY DOCUMENTS 23 A. Plaintiff seeks to introduce all defendants’ discovery responses and documents 24 obtained through discovery. 25 B. Defendants anticipate offering plaintiff’s deposition transcript, or portions thereof, at 26 trial, only for purposes of impeachment or rebuttal. 27 C. Lodging Deposition Transcripts and Video Files 28 It is the duty of counsel to ensure that any deposition transcripts which are to be used at 1 trial have been lodged with the Clerk of the Court not later than one week prior to trial. 2 Counsel are cautioned that a failure to discharge this duty may result in the Court precluding use 3 of the deposition or imposition of such other sanctions as the Court deems appropriate. 4 D. Use of Depositions 5 The parties are ordered to file with the Court and exchange between themselves not later 6 than one week before trial a statement designating portions of depositions intended to be offered 7 or read into evidence (except for portions to be used only for impeachment or rebuttal). 8 E. Interrogatories and Admissions 9 To the extent the parties intend to offer or read into evidence any portions of Answers to 10 Interrogatories or Admissions, a statement designating those discovery responses shall also be 11 filed and exchanged not later than one week before trial (except portions to be used only for 12 impeachment or rebuttal). 13 FURTHER DISCOVERY OR MOTIONS 14 Discovery is reopened for the limited purpose of allowing defendants to depose 15 incarcerated witnesses Jayshawn Visa Pierce, Morris Gene Ervin, and Raymond Carl Johnson. 16 All depositions shall be conducted by August 25, 2025. Defendants anticipate filing a motion in 17 limine. The Court sets a filing deadline for motions in limine of February 2, 2026 with 18 opposition briefs due by February 9, 2026 and reply briefs due by February 16, 2026. 19 STIPULATIONS 20 At this time the parties have reached no stipulations. Defendant Leavitt requests that the 21 parties stipulate to the authenticity of plaintiff’s CDCR medical records and central file with 22 affidavits from the custodian of records. 23 AMENDMENTS/DISMISSALS 24 None. 25 AGREED STATEMENTS 26 Defendants contend that an Agreed Statement of Facts is not feasible in this case. 27 SEPARATE TRIAL OF ISSUES 28 Defendants Fong, Munoz, and Williamson seek bifurcation of the issue of punitive 1 damages. Should the jury determine that a defendant is liable and punitive damages are 2 appropriate, the amount of punitive damages will be bifurcated to the extent that evidence 3 concerning a defendant’s financial status or net worth will be introduced only after such a finding. 4 IMPARTIAL EXPERTS -- LIMITATION OF EXPERTS 5 Not applicable. 6 ATTORNEYS’ FEES 7 Plaintiff seeks attorney’s fees pursuant to Local Rule 293(c), but he is not represented by 8 counsel. Defendants do not seek attorneys’ fees. 9 PROPOSED JURY VOIR DIRE AND PROPOSED JURY INSTRUCTIONS 10 A. Jury Instructions 11 The parties are directed to meet and confer and to attempt to agree upon a joint set of jury 12 instructions. The parties shall use the Ninth Circuit Model Jury Instructions and any revisions. 13 Alternate instruction or authority may only be used if a Ninth Circuit Model Jury Instruction is 14 unavailable. All instructions shall be, to the extent possible, concise, understandable, and free 15 from argument. See Local Rule 163(c). Parties shall also note that any modifications of 16 instructions from statutory authority, case law or from any form of pattern instructions must 17 specifically state the modification by underlining additions and bracketing deletions. Pursuant to 18 Local Rule 163, jury instructions shall be filed with the Court one week before trial. 19 If the parties are unable to agree to a joint filing, the parties may submit separate filings. 20 B. Verdict Form 21 The parties must file a joint verdict form(s) concurrently with proposed jury instructions 22 one week before trial. If necessary, a special verdict or interrogatories shall be included for all 23 factual disputes submitted to the jury that must be resolved before questions of law can be 24 decided, and for any other issue on which specific responses are desired. See Local Rule 163(e). 25 If the parties are unable to agree to a joint filing, the parties may submit separate filings. 26 C. Voir Dire 27 The parties shall submit proposed voir dire questions to the Court. The Court reserves the 28 right to conduct all examination of prospective jurors. Pursuant to Local Rule 162.1, the voir dire 1 questions shall be filed with the Court one week before trial. 2 If the parties are unable to agree to a joint filing, the parties may submit separate filings. 3 MISCELLANEOUS 4 Plaintiff’s present custodian shall provide for plaintiff’s presence at trial pursuant to the 5 writ of habeas corpus ad testificandum to be issued by the court. All parties shall take any steps 6 necessary to facilitate execution of said writ. The parties and plaintiff’s custodian are cautioned 7 that sanctions will be imposed for failure to comply with court orders. 8 The parties are directed to Local Rule 285 regarding the contents and the deadline for 9 filing trial briefs. 10 PLAINTIFF’S MOTIONS FOR ATTENDANCE OF INCARCERATED WITNESSES 11 Plaintiff filed several motions for the attendance of incarcerated witnesses identified by 12 their name and CDCR number. ECF Nos. 193, 194, 208. The motions also contain various 13 declarations describing each witness’ actual knowledge of the events of November 21, 2014. 14 ECF Nos. 193, 194, 208. Defendants oppose plaintiff’s motions for the attendance of inmate 15 witnesses Morris Gene Ervin and Raymond Carl Johnson because plaintiff did not list them in his 16 interrogatory responses. However, as plaintiff points out, defendants have known about these 17 inmate witnesses for over a year now. See ECF Nos. 166, 173. The court will grant plaintiff’s 18 motion for the attendance of incarcerated witnesses Jayshawn Visa Pierce, Morris Gene Ervin, 19 and Raymond Carl Johnson. ECF Nos. 193, 194, 208. The necessary writs of habeas corpus ad 20 testificandum for each of these witness’ attendance at trial will be issued by the court. 21 The court denies Plaintiff’s motion for the attendance of inmate Tylo Felix as his 22 declaration indicates that he did not witness the events of November 21, 2014. To the extent that 23 Plaintiff seeks to introduce this witness’s testimony as propensity or character evidence, the 24 subsequent use of excessive force by Defendant Williamson occurred after the events at issue in 25 this case. This evidence would not be admissible to demonstrate Defendant Williamson’s 26 propensity for excessive force or his character for violence. Therefore, the Court grants, in part, 27 and denies in part Plaintiff’s motions for the attendance of incarcerated witnesses. ECF Nos. 193, 28 194, 208. 1 PLAINTIFF’S MOTION FOR A WAIVER OF WITNESS FEES 2 Plaintiff has filed a motion for the waiver of witness fees for those witnesses who have 3 been released from custody. ECF No. 210. Although Plaintiff does not indicate which witnesses 4 this motion applies to, the court construes it as a request to waive the daily witness fees and travel 5 expenses for Jaquan Jones, Nathan Carlson, and Michael Bricker who have been released from 6 incarceration. ECF No. 210. After reviewing Plaintiff’s motion, it appears that Plaintiff only has 7 a current address for Nathan Carlson. See ECF No. 208 at 14-17 (Plaintiff’s Letter to Nathan 8 Carlson in L.A. sent on 9/10/24). Therefore, his motion for the waiver of witness fees for Jaquan 9 Jones and Michael Bricker is denied as moot since Plaintiff has not listed any current contact 10 information for these witnesses and would not be able to subpoena them. Plaintiff has not 11 indicated whether Mr. Carlson is willing to testify voluntarily, or whether he requires a subpoena 12 to secure his attendance at trial. See ECF No. 204 (indicating Carlson may request a travel pass 13 from his parole agent or may require the issuance of a subpoena). As Plaintiff was previously 14 informed, his in forma pauperis status does not relieve him of the responsibility of paying his 15 witness fees as a civil litigant. See ECF No. 203 at 4. Although Plaintiff indicates several 16 alternatives to his prepayment of these fees including paying them on a monthly basis or having 17 them assessed as costs to be paid by the losing party at trial, the Ninth Circuit Court of Appeal 18 has concluded that the IFP statute requires witness fees to be tendered at the same time as the 19 subpoena. Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (citing CF & I Steel Corp. v. Mitsui 20 & Co., 713 F.2d 494, 496 (9th Cir.1983)). There is simply no procedural mechanism that would 21 require the U.S. Marshal to serve a subpoena without prepayment of the witness fees. To the 22 extent that Nathan Carlson does not agree to testify voluntarily, the Court denies Plaintiff’s 23 motion to waive the prepayment of his daily witness fees and travel expenses from Los Angeles. 24 ECF No. 210. For all these reasons, the Court denies Plaintiff’s motion to waive witness fees for 25 Jaquan Jones, Nathan Carlson, and Michael Bricker. ECF No. 210. 26 As indicated in the Court’s further scheduling order, it is Plaintiff’s responsibility to 27 secure the testimony of an unincarcerated witness either voluntarily, or through the issuance of a 28 subpoena to be served by the United States Marshall at the witness’ current address. Not earlier 1 | than four weeks and not later than two weeks before trial, Plaintiff must prepare and submit 2 || to the United States Marshal a subpoena for service by the Marshal upon any unincarcerated 3 || witness, including Mr. Carlson. At the time of filing, Plaintiff must also tender the daily witness 4 | fee of $40.00 plus the witness’ travel expenses. A subpoena will not be served by the United 5 || States Marshal upon an unincarcerated witness unless the subpoena is accompanied by a money 6 || order made payable to the witness for the full amount of the witness’ travel expenses plus the 7 || daily witness fee of $40.00. 8 | SHACKLING 9 A hearing to make an individualized determination regarding the need for Plaintiff to be 10 | shackled before the jury shall be heard prior to the start of trial. See Claiborne v. Blauser, 934 11 | F.3d 885 (9th Cir. 2019). 12 | ESTIMATED TIME OF TRIAL/TRIAL DATE 13 Jury trial is set for Monday, February 23, 2026 at 9:00 a.m. in Courtroom #2 before the 14 | Honorable Troy L. Nunley. Trial is anticipated to last four to five days. 15 IT ISSO ORDERED. 16 | DATED: August 29, 2025 pk [18] SEAN C. RIORDAN 19 UNITED STATES MAGISTRATE JUDGE