UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 1, 2011
KAREN K. FRYE,
COUNTY OF KERN; KERN COUNTY SHERIFF'S DEPARTMENT; SHERIFF DONNY YOUNGFLOOD; ANTHONY LAVIS; STEPHEN PEDERSON; D.M. WODS; MATTHEW ETCHEVERY; VICTOR MARTINEZ; JOSE SANCHEZ;
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SCHEDULING CONFERENCE ORDER
Discovery Cut-Off: 5/7/12 Non-Dispositive Motion Filing Deadline: 5/22/12 Non-Dispositive Motion Hearing Date: 6/22/12 9:00 Ctrm. 9 Dispositive Motion Filing Deadline: 6/7/12
Dispositive Motion Hearing Date: 7/9/12 10:00 Ctrm. 3 Settlement Conference Date: 5/15/12 10:00 Ctrm. 9 Pre-Trial Conference Date: 8/20/12 11:00 Ctrm. 3 Trial Date: 9/25/12 9:00 Ctrm. 3 (JT-12 days)
I. Date of Scheduling Conference. January 26, 2011.
III. Summary of Pleadings.
1. This case arises from a series of alleged sexual assaults that took place in the Lerdo Detention Facility in Kern County, California, during the month of October, 2009. Plaintiff, Karen K. Frye, contends that Defendant, Anthony Lavis, an employee of the Kern County Sheriff's Department, sexually assaulted her during the month of October, 2009, while Plaintiff was being held in the infirmary at the Lerdo Detention Center. Plaintiff further contends that Defendants conspired to deprive her of her Constitutional rights, and that Defendants fraudulently attempted to secure Plaintiff's signature on what was purported to be a receipt, but what was actually a release, which purported to release Defendants of their conduct.
1. In or about the month of August, 2009, Plaintiff was incarcerated at Defendant Kern County Sheriff's Department's Lerdo Detention Center. Thereafter, on or about the month of September, 2009, Plaintiff began to experience abdominal pain while incarcerated at the Lerdo Detention Center. Plaintiff was transported to Kern Medical Center for treatment, where she ultimately underwent surgery to remove her gall bladder. Thereafter, Plaintiff was returned to the Lerdo Detention Center. At all times relevant herein, Plaintiff was in the custody of Defendant, Kern County Sheriff's Department.
2. When Plaintiff was returned to the Lerdo Detention Center, she was housed in the facility's infirmary for ongoing observation and treatment. While in the infirmary, Plaintiff was administered medications for pain and discomfort, including, but not limited to, Vicodin and Klonopin. Plaintiff remained on these medications for all relevant times mentioned herein and Plaintiff alleges that Defendants, and each of them, had knowledge of the medications and their effect(s), as they were being administered by employees of Defendant, Kern County Sheriff's Department.
3. While Plaintiff was being housed in the facility's infirmary, and while she was being administered the aforementioned medications, Plaintiff was subjected to continual sexual assaults and harassment by Defendant, Anthony Lavis. More specifically, and without limitation, these acts included, but were not limited to:
a. Defendant, Anthony Lavis, while giving Plaintiff medication, including pain medication, repeatedly told Plaintiff that he had dreams about having sex with her;
b. Defendant, Anthony Lavis, on at least two occasions, entered the shower facility and fondled and/or touched Plaintiff against her protests;
c. Defendant, Anthony Lavis, on other occasions pushed Plaintiff against the wall of her cell and fondled her while he rubbed himself against her body with his pants unzipped;
d. Defendant, Anthony Lavis, on at least two occasions penetrated Plaintiff's vagina with his finger.
4. On or about mid-October, 2009, Plaintiff returned to Kern Medical Center for follow-up care. After the acts mentioned above, Plaintiff told Defendant, Victor Martinez, an employee of the Kern County Sheriff's Department what Defendant, Anthony Lavis, had done to her as more specifically described above. Thereafter, Defendants Victor Martinez, Jose Sanchez and Dona Wood, all employees of the Kern County Sheriff's Department, requested that Plaintiff assist them in a sting operation against Defendant, Anthony Lavis. Plaintiff was told that the "sting" operation was to take place in her cell, which was located within the infirmary at the Lerdo Detention Center. Defendants, Victor Martinez, Jose Sanchez, and Dona Wood, requested that Plaintiff wear a wired audio recording device ("wire") during the "sting." Defendants, Victor Martinez, Jose Sanchez, and Dona Wood offered to pay Plaintiff $1,500.00 in exchange for her agreement to wear the wire during the sting. Additionally Defendants, Victor Martinez, Jose Sanchez, and Dona Wood, told Plaintiff that a video camera would be present in her cell during the "sting." In addition, the above-mentioned employees of the Kern County Sheriff's Department told Plaintiff they would protect her from any further assaults by Defendant, Anthony Lavis, during the "sting" operation. Based on these representations made by Defendants and the promise to pay Plaintiff $1,500 in exchange for wearing the wire, Plaintiff agreed to participate in the "sting."
5. At the time of the sting, Defendant, Dona Wood, placed the wire on Plaintiff, while Defendant, Victor Martinez, placed a video camera in Plaintiff's cell within a hollowed out Bible. Thereafter, Defendant, Anthony Lavis, entered Plaintiff's cell and demanded that Plaintiff come over to him. Defendant, Anthony Lavis, then put his hands down Plaintiff's pants and penetrated Plaintiff's vagina with his finger. Defendant, Anthony Lavis, also stated to Plaintiff that he wanted to have sex with her. After this sexual assault, Defendant, Anthony Lavis, left Plaintiff's cell. Plaintiff is informed, believes and thereon alleges that during the "sting" operation Defendants, Victor Martinez, Jose Sanchez, and Dona Wood, had knowledge of then occurring events and acts taking place in Plaintiff's cell, including the unlawful touching, assault and molestation by Defendant, Anthony Lavis, via the wire and video camera, and failed to intercede and stop Defendant, Anthony Lavis' sexual assault on Plaintiff.
6. Later on the same day of the "sting" operation, Plaintiff was taken to Kern Medical Center, and then Memorial Hospital, to undergo a "rape kit." While at the hospital, Plaintiff was also given medication(s). Thereafter, Plaintiff was driven to the Defendant, Kern County Sheriff's Department's headquarters. While Plaintiff was at the Sheriff's Department headquarters, she was under the influence of the medications that had been administered to her at the Lerdo Detention Center, and the hospital. In addition, Plaintiff was suffering from emotional distress as a result of the sexual assault upon her that had occurred during the "sting" operation. While under the influence of the administered medications and emotionally distressed, Defendants, Matthew Etchevery and Stephen Pederson, placed a document before Plaintiff that they explained was a receipt for the $1,500.00 that had been promised to Plaintiff in exchange for her participation in the "sting" operations. Defendants, Matthew Etchevery and Stephen Pederson, then demanded that Plaintiff sign the document that they represented was a receipt. Plaintiff then signed the document, believing that it was a receipt for the $1,500.00 that had been promised to her.
7. After signing the document purporting to be a receipt, Plaintiff was transported to the County of Kern's downtown jail facility where she was placed in a "keep away" program that consisted of solitary confinement. Plaintiff was placed in this program for two (2) months, during which time she was not allowed to associate with other inmates.
8. Plaintiff alleges that she was put in isolation to keep her from discussing the assaults with others, and that there was no other legitimate reason for her to be placed in confinement.
9. Plaintiff is informed and believes, and upon such information and belief alleges, that Defendants, and each of them, are responsible for implementing, maintaining, sanctioning, and/or condoning a policy, custom or practice under which the Sheriff's Deputies, and the Defendants' agents, officers and/or their employees, committed the aforementioned illegal or wrongful acts. Plaintiff is informed and believes that the conduct of said Deputies, Officers, agents and/or employees of Defendant Kern County Sheriff's Department is/was consistent with the training and the policies set forth by the Defendants, County of Kern, Kern County Sheriff's Department, and Donny Youngblood and/or that such conduct of unwanted touching is/was ratified by Defendants Donny Youngblood, Kern County Sheriff's Department, and the County of Kern.
10. Each of the Defendants is responsible for implementing, maintaining, sanctioning and/or condoning a policy, custom or practice under which the Defendants' agents, officers and/or their employees and other Defendants committed the aforementioned illegal or wrongful acts. Defendants, and each of them, maintained or permitted an official policy or custom of knowingly permitting the occurrence of the type of wrong set forth above, and based upon the principles set forth herein.
1. Plaintiff was an inmate at the Lerdo Pretrial Facility. While there, she alleges she was subjected to sexual touching and improper verbal comments by a detentions deputy named Anthony Lavis. If sexual touching did occur, it was consensual and was engaged in by Plaintiff to secure contraband. After complaining about Lavis' conduct to jail authorities, Plaintiff voluntarily cooperated with Sheriff's Department personnel by wearing a wire as part of an investigation to determine whether Lavis would admit his involvement in inappropriate conduct with Plaintiff. Plaintiff was instructed multiple times not to allow Lavis to touch her and was also instructed to call for help if Lavis did attempt to touch her. During the investigation, Plaintiff engaged in touching with Lavis and allowed Lavis to touch her.
She did not call for help. Following Lavis' removal from the jail facility, Plaintiff entered into an agreement with County of Kern to release County and its agents from liability for Lavis' conduct in exchange for a payment of $1,500.00, which was applied to her inmate account and which she spent while in custody. Prior to entering into the agreement, the terms of the agreement and their effect were explained to Plaintiff and she expressed her understanding of the terms and agreed to them.
IV. Orders Re Amendments To Pleadings.
1. The parties do not anticipate amending the pleadings at this time. The Court proposes to dismiss the Kern County Sheriff's Department as a defendant from this suit. Mr. Cohn will notify the Courtroom Deputy within five days next following this conference, by February 3, 2011, whether he has any legal authority to prevent the dismissal without prejudice of the Sheriff's Department.
2. The Defendants, Does 1 through 100, inclusive, are ORDERED DISMISSED without prejudice.
3. Any party shall have through and including October 25, 2011, to amend their pleadings.
4. Any joinder of parties within that time period shall be accomplished by stipulation and without the necessity of a Rule 15 motion.
V. Factual Summary.
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings.
1. Plaintiff, Karen K. Frye, is a citizen of the United States and at times relevant was incarcerated at the Lerdo Pretrial Facility and incarcerated in the infirmary at said facility.
2. Anthony Lavis was at all times an employee of the County of Kern, acting as a detention deputy for the Kern County Sheriff.
3. Defendant Lavis was at all times acting under color of law and in the course and scope of his employment as a Deputy Sheriff.
4. Individual Defendants Jose Sanchez, D.M. Woods, and Stephen Pederson, were employed as Deputy Sheriffs employed by the County of Kern.
5. Matthew Etchevery is the litigation coordinator for the County of Kern.
6. All Kern County individual Defendants were acting within the course and scope of their employment and were acting under color of law.
7. Plaintiff and Anthony Lavis participated in physical touching.
8. On October 19, 2008, Plaintiff signed a document entitled "Release of All Claims."
9. Plaintiff signed a claim form dated October 19, 2009.
10. Plaintiff was paid and received $1,500.00 by and from the County of Kern, which was placed in her inmate account and which she spent while in custody.
B. Contested Facts.
1. Whether the touching between Plaintiff and Lavis was voluntary and consensual or involuntary and not consensual.
2. Whether Plaintiff engaged in touching for purposes of obtaining contraband.
3. Whether Plaintiff's agreement to release Defendants was voluntary and enforceable.
4. Plaintiff's injuries and damages, if any.
5. Whether Defendants engaged in fraudulent conduct.
6. Whether Defendants engaged in a conspiracy.
7. The terms of the agreement with Plaintiff and whether Defendants breached the agreement.
VI. Legal Issues.
1. Jurisdiction exists under 28 U.S.C. § 1331 and 42 U.S.C. § 1983. Supplemental jurisdiction is invoked under 28 U.S.C. § 1367.
2. Venue is proper under 28 U.S.C. § 1391.
3. As to Federal question claims, the law of the United States applies.
4. The substantive law of the State of California applies to the supplemental claims.
1. Whether Plaintiff's civil rights were violated.
2. Whether Plaintiff has waived her causes of action.
3. Whether Plaintiff has released Defendants from liability and is, therefore, barred from suing Defendants.
4. Whether Plaintiff is barred by the doctrine of equitable estoppel.
5. The defense of qualified immunity.
6. All state immunities raised by Defendants.
7. Any comparative negligence on the part of Plaintiff.
8. Whether there is Monell liability on the part of Kern County.
9. Whether Defendants breached their contract with Plaintiff.
10. To the extent issues of course and scope of employment and actions under color of law are mixed questions of fact and law, those issues as to all Kern County employees is undisputed.
VII. Consent to Magistrate Judge Jurisdiction.
1. The parties have not consented to transfer the case to the Magistrate Judge for all purposes, including trial.
VIII. Corporate Identification Statement.
1. Any non-governmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.
IX. Discovery Plan and Cut-Off Date. Plaintiff's Discovery Plan.
1. Written discovery to each named Defendant.
2. Depositions of each individual Defendant.
3. Plaintiff is willing to increase the number of allowed depositions to exceed the statutory limit of 10.
4. Depositions of witnesses with knowledge pertinent.
Defendants' Discovery Plan.
1. Written discovery to Plaintiff.
2. Deposition of Plaintiff.
3. Defendants are willing to increase the number of allowed depositions to exceed the statutory limit of 10.
4. Depositions of witnesses with knowledge pertinent to case.
The Court adopts the following schedule for the case:
1. The parties are ordered to complete all non-expert discovery on or before January 6, 2012.
2. The parties are directed to disclose all expert witnesses, in writing, on or before February 3, 2012. Any rebuttal or supplemental expert disclosures will be made on or before April 6, 2012. The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F.
R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order.
3. The parties are ordered to complete all discovery, including experts, on or before May 7, 2012.
4. The provisions of F. R. Civ. P. 26(b)(4) shall apply to all discovery relating to experts and their opinions. Experts shall be fully prepared to be examined on all subjects and opinions included in the designation and their reports, which shall include every opinion to be rendered and all reasons for each opinion. Failure to comply will result in the imposition of sanctions.
X. Pre-Trial Motion Schedule.
1. All Non-Dispositive Pre-Trial Motions, including any discovery motions, shall be filed on or before May 22, 2012, and heard on June 22, 2012, at 9:00 a.m. before Magistrate Judge Dennis L. Beck in Courtroom 9.
2. In scheduling such motions, the Magistrate Judge may grant applications for an order shortening time pursuant to Local Rule 142(d). However, if counsel does not obtain an order shortening time, the notice of motion must comply with Local Rule 251 and this schedule.
3. All Dispositive Pre-Trial Motions are to be filed no later than June 7, 2012, and will be heard on July 9, 2012, at 10:00 a.m. before the Honorable Oliver W. Wanger, in Courtroom 3, 7th Floor. In scheduling such motions, counsel shall comply with Local Rule 230.
XI. Pre-Trial Conference Date.
1. August 20, 2012, at 11:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger.
2. The parties are ordered to file a Joint Pre-Trial Statement pursuant to Local Rule 281(a)(2).
3. Counsel's attention is directed to Rules 281 and 282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court insists upon strict compliance with those rules.
XII. Motions - Hard Copy.
1. The parties shall submit one (1) courtesy paper copy to the Court of any motions filed. Exhibits shall be marked with protruding numbered or lettered tabs so that the Court can easily identify such exhibits.
XIII. Trial Date.
1. September 25, 2012, at the hour of 9:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.
2. This is a jury trial.
3. Counsels' Estimate Of Trial Time:
a. Twelve days.
4. Counsels' attention is directed to Local Rules of Practice for the Eastern District of California, Rule 285.
XIV. Settlement Conference.
1. A Settlement Conference is scheduled for May 15, 2012, at 10:00 a.m. in Courtroom 9 before the Honorable Dennis L. Beck, United States Magistrate Judge.
2. Unless otherwise permitted in advance by the Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms at the conference.
3. Permission for a party [not attorney] to attend by telephone may be granted upon request, by letter, with a copy to the other parties, if the party [not attorney] lives and works outside the Eastern District of California, and attendance in person would constitute a hardship. If telephone attendance is allowed, the party must be immediately available throughout the conference until excused regardless of time zone differences. Any other special arrangements desired in cases where settlement authority rests with a governing body, shall also be proposed in advance by letter copied to all other parties.
4. Confidential Settlement Conference Statement.
At least five (5) days prior to the Settlement Conference the parties shall submit, directly to the Magistrate Judge's chambers, a confidential settlement conference statement. The statement should not be filed with the Clerk of the Court nor served on any other party. Each statement shall be clearly marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon. Counsel are urged to request the return of their statements if settlement is not achieved and if such a request is not made the Court will dispose of the statement.
5. The Confidential Settlement Conference Statement shall include the following:
a. A brief statement of the facts of the case.
b. A brief statement of the claims and defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute.
c. A summary of the proceedings to date.
d. An estimate of the cost and time to be expended for further discovery, pre-trial and trial.
e. The relief sought.
f. The parties' position on settlement, including present demands and offers and a history of past settlement discussions, offers and demands.
XV. Request For Bifurcation, Appointment Of Special Master, Or Other Techniques To Shorten Trial.
1. The amount of punitive damages, if any, shall be tried in a second phase of a continuous trial after a finding of liability for punitive damages in the first phase, without regard to amount.
2. Defendants will seek to bifurcate Monell issues from liability as to the individual Defendants and County of Kern.
XVI. Related Matters Pending.
1. A related case exists entitled People of the State of California v. Anthony Michael Lavis, which is pending in the Superior Court of California, County of Kern, case number BF130937A.
XVII. Compliance With Federal Procedure.
1. The Court requires compliance with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto.
XVIII. Effect Of This Order.
1. The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference.
2. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested.
3. Failure to comply with this order may result in the imposition of sanctions.
IT IS SO ORDERED.
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