No.

CIV S-04-1254 GGH P

United States District Court, E.D. California

Brook v. Carey
Decided Apr 22, 2008

No. CIV S-04-1254 GGH P. available for cross-examination presented hearsay

issues. The court indicated that motions in limine
April 22, 2008
should contain specific discovery requests to be
placed before the jury. To avoid a cumbersome
ORDER authentication procedure at trial, and in
consultation with the parties, the court tasked
GREGORY HOLLOWS, Magistrate Judge defendants with producing a master copy of all of
Pursuant to the consent of the parties, this action plaintiff's medical file/records, including all dental
has been reassigned to the undersigned. See Order, records, since 1999 at trial. The court stated that
filed on February 27, 2008. A trial confirmation plaintiff would be permitted to submit as an
hearing was held on March 17, 2008. Plaintiff exhibit any matching record he sought to present.
appeared pro se via video-conferencing. Any additional writing on an exhibit would be
Christopher Becker appeared on behalf of stricken.
defendants. At the hearing, a new trial date was The court set the schedule for the filing of motions
set. in limine, proposed jury instructions, and any trial
Plaintiff asked that his three witnesses already briefs. See below. As to proposed jury
scheduled to appear via video-conferencing be instructions, in response to an inquiry by plaintiff,
allowed to appear in person at trial, and that the undersigned informed him that the court does
additional witnesses be permitted to appear via not preliminary instructions. Rather, plaintiff was
video-conferencing. Plaintiff also asked that David advised that only substantive instructions going to
Elmore be substituted as one of his three approved plaintiff's specific claims be submitted, and that
witnesses in place of witness Jennings (a the court would draft final jury instructions,
substitution request that he subsequently modified synthesizing defendants' and plaintiff's proposed
— see below). The court directed plaintiff, within instructions.
15 days of the hearing, to re-submit his request for Plaintiff asked for trial counsel or even a law
additional witnesses and stated that plaintiff's student adviser. The court indicated that plaintiff's
request to have personal appearances of the three request would be considered, but probably denied
approved witnesses would be reconsidered. because, if appointed, most counsel would seek to
2 Plaintiff was also *2 directed to submit a statement re-start the case even at this very late juncture. In
with regard to his request for the witness addition, the undersigned observed that plaintiff
substitution. has been articulate and has displayed uncommon
Defendants indicated that they would object to the common sense throughout this litigation.
admission of witness declarations as testimony on Moreover, the court assured plaintiff pro se that
direct or as exhibits, and the court explained to the trial proceedings would not be obscure or
plaintiff that declarations from witnesses not hyper-technical, but, instead, the undersigned will

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 Brook v. Carey No. CIV S-04-1254 GGH P (E.D. Cal. Apr. 22, 2008)

proceed in a manner that will be as educational as [D]efendants will not be permitted to set
possible for plaintiff. Upon further reflection, the forth as an undisputed fact that plaintiff did
court now concludes that appointment of counsel not submit sick call request forms in the
does not meet the required exceptional period up to December 2005, related to his
circumstances for the court to request the need for dental care, should they have
voluntary assistance of counsel pursuant to 28 sought to do so. Moreover, the court will
U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d accept plaintiff's testimony that he made
1015, 1017 (9th Cir. 1991); Wood v. Housewright, multiple requests for dental treatment
3 *3 900 F.2d 1332, 1335-36 (9th Cir. 1990), and the during the period from July 2003, until
request will be denied. December 2005, the time during which
defendants concede the prison either did
Plaintiff re-visited an issue with regard to
not maintain records of request forms or
testimony as to the destruction of certain records
for which the records of request forms
he desired to obtain from an unincarcerated
have been destroyed, should plaintiff raise
witness, Laura Mefford (see Pretrial Order, # 114,
the issue in his opposition to the motion
p. 5), that defendants argued had been a discovery
for summary judgment. To the extent that
issue that was previously resolved. In a previous
the issue of repeated sick requests for
motion for unspecified sanctions, filed August 31,
which there is no record may be material,
2006, contending that defendants had not acted in
it may become a disputed issue of fact.
good faith with respect to producing sick call
request sheets (CDC Form 7263) from January 1, Id. at 14.
1998, to the date of his production request, on
At the trial confirmation hearing, the court made
February 5, 2005, the court, after considering the
clear that plaintiff would be permitted to testify as
evidence, concluded that defendants had not acted
to the number of sick call requests he had made
in evident bad faith and denied the motion for
during the relevant period without defendants'
unspecified sanctions without prejudice (see
being permitted to challenge or dispute such
Order, filed on 7/13/07, pp. 10-14, 38), but stated,
testimony. Thus, plaintiff's need for the testimony
with regard to the then-pending summary
of Laura Mefford has been obviated.
judgment motion:
With regard to plaintiff's request concerning
access to his inmate witnesses, plaintiff was
directed to first broach prison officials with his
requests, as the court is reluctant to interpose
orders affecting prison administration/procedures
without plaintiff having exhausted more direct,
less intrusive avenues. As to defendants' request
4 that they might wish to have *4 someone explain a
statement that would be otherwise confusing in the
medical records, the court informed defendants
that it would generally not hear objections on
hearsay grounds re: the medical records' hearsay
exception (see Fed.R.Evid. 803(4)). However, as
plaintiff did not object, the court permitted
defendants to add Dr. Jennings as potential
defense witness.

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 Brook v. Carey No. CIV S-04-1254 GGH P (E.D. Cal. Apr. 22, 2008)

Plaintiff has filed his request for witness testimony access to their own legal and personal property
as directed at the hearing. Plaintiff identified and to the law library entailed by physical
Inmates Willis, Jennings and Bigelow in a transport and alternate housing, and there is no
supplemental filing to the Pretrial Order. See guarantee that these disruptions will be brief, as
Docket Entry # 116. Although at the trial inmates brought to this court for an appearance
confirmation hearing plaintiff had sought the have often experienced being housed away from
substitution of inmate Elmore for inmate Jennings, their assigned institutions for an indefinite and
in his written request he altered the substitution extended period. Finally, in this constantly and
request to replace inmate Willis, not Jennings, rapidly advancing technological/digital age, there
with inmate Elmore. The court will now permit are very few, if any, individuals unfamiliar with
plaintiff to substitute David Elmore in place of experiencing and fully absorbing the reality of
Theodore Willis, as this court had included inmate televised images. It is highly unlikely that there
Elmore as one of the five inmate witnesses from will be any meaningful nuance that any
whom plaintiff could select three to appear as his prospective juror could miss simply by having to
inmate trial witnesses. See Pretrial Order, # 114, focus on a video communication rather than by
filed on 1/25/08, p. 7. Moreover, as to the seeing a witness in person.
additional witnesses requested by plaintiff, inmate
David Wayne Johnson, CDC # C-61865, will be Miscellaneous
permitted to appear as a witness for plaintiff as On March 31, 2008, some two weeks following
well. As to inmates John Wilson and John Card, the trial confirmation hearing, plaintiff, without
their proffered testimony appears to be seeking or obtaining the court's permission, filed a
unnecessarily duplicative of testimony plaintiff purported motion for partial summary judgment.
should be able to obtain from those inmate In a motion to strike the motion as untimely, filed
witnesses he is being permitted to call, and, as to on April 2, 2008, defendants correctly noted that
inmate Menacho's testimony, the relevance of his the Scheduling Order, filed on 9/26/06, required
testimony is questionable, and plaintiff will not be that all pretrial motions, other than discovery
permitted to call these three additional inmate motions, be filed by January 19, 2007. The only
witnesses. dates that have been altered in the Scheduling
Order have been the dates for the pretrial
With regard to the question of whether any of
conference and the trial. Defendants' motion will
plaintiff's inmate witnesses will be allowed to
be granted and plaintiff's belated summary
make in-person court appearances, after due
judgment motion will be stricken as untimely.
consideration, the court now determines that all
such witnesses should appear by way of video- On March 24, 2008, plaintiff filed a request for a
conferencing. Several reasons militate for this new Scheduling Order setting forth the times and
ruling. Plaintiff underestimates the burden on the dates set at the trial confirmation hearing, which
state and the taxpayer of the cost of providing request will be denied as moot. On April 2, 2008,
transportation, alternate housing and security for plaintiff sought an extension of time to meet the
such appearances by multiple inmates. Moreover, deadlines that are herein set forth because CSP-
the inmate witnesses themselves will be burdened Solano was, as of March 28, 2008, on full
by having any current work (and any earnings lockdown status. Plaintiff does not thereby,
therefrom) and program schedules disrupted, as however, make clear that he will otherwise be
well as by experiencing interruptions to any on- unable to meet the deadlines for submitting
going litigation or other projects with which they proposed jury instructions, etc., in accordance
5 may be involved *5 themselves by limited, if any, with this order; therefore, the request will be
6 denied as premature. *6

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 Brook v. Carey No. CIV S-04-1254 GGH P (E.D. Cal. Apr. 22, 2008)

Finally, the date for exchange of the parties' trial appear only via video-conferencing, and plaintiff
exhibits identified in the Pretrial Order is extended will be permitted no other inmate witnesses; the
from the deadline set forth therein. To the extent court will issue the appropriate writs of habeas
that they have not already done so, the parties corpus ad testificandum for all inmate witnesses
shall exchange copies of their exhibits by mail 7 and plaintiff at the appropriate time; *7
within ten days of the date of this order.
5. Pursuant to defendants' request, and without
Accordingly, IT IS ORDERED that: objection by plaintiff, defendants have been
permitted to add Dr. Jennings as a potential
1. The prior trial date before Judge Burrell has
defense witness to those witnesses previously
been vacated from the Pretrial Order, and the trial
identified in the Pretrial Order;
date has been re-set for June 16, 2008, at 9:00 a.m.
before the undersigned in Courtroom # 24; 6. Any discovery requests sought to be put before
the jury must be specifically identified in a motion
2. To the extent that they have not yet done so, the
in limine;
parties are to exchange trial exhibits by mail
within ten days of the date of this order; each party 7. Motions in limine must be filed two weeks
is to file any objections to exhibits by ten days before trial with any response due one week prior
before trial, and, as set forth in thePretrial Order, to trial;
plaintiff is to mark exhibits by numbers and
8. Defendants are precluded from challenging any
defendant to use letters;
testimony by plaintiff with regard to the number of
3. Defendants' counsel will produce an sick call requests he submitted for dental treatment
authenticated master copy of plaintiff's medical during the period from July 2003, until December
file/records, including but not limited to plaintiff's 2005;
dental records, beginning from 1999 through the
9. Proposed jury instructions must be filed one
present, at trial; should plaintiff seek to submit his
week prior to trial;
own medical/dental record exhibit, as long as it is
matched in the master copy, he will be permitted 10. If plaintiff or defendants wish to submit a trial
to submit it as a trial exhibit without further brief, any trial brief must be filed one week prior
authentication, but with any extraneous added to trial
commentary or notation stricken;
11. Defendants' April 2, 2008 (#128) motion to
4. In addition to inmate witness Charles Jennings, strike as untimely plaintiff's motion for partial
CDC # C-01249, and inmate witness Wendell summary judgment, filed on March 31, 2008
Bigelow, CDC# T-66059, plaintiff may call inmate (#126) is granted, and plaintiff's belated partial
witness David Elmore, CDC # K-87926, in place summary judgment motion is stricken;
of inmate Theodore Willis, which substitution
12. Plaintiff's March 24, 2008 (# 125), request for
constitutes an amendment to the Supplement to
a new Scheduling Order is denied as moot;
Pretrial Order, filed on 2/22/08; moreover,
plaintiff may also call inmate David Wayne 13. Plaintiff's April 2, 2008 (# 129), request for an
Johnson, CDC # C-61865, as a witness, but all 1 extension of time is denied as premature. *1
inmate witnesses, other than plaintiff himself, will