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Donald Nelson, et al v. Butte County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 11, 2013

DONALD NELSON, ET AL., PLAINTIFFS,
v.
BUTTE COUNTY SHERIFF'S DEPARTMENT, ET AL., DEFENDANTS.

ORDER

Plaintiffs Donald Nelson, Thomas Brewer, Joseph Simpson, and Donald Canfield ("Plaintiffs"), proceed with counsel in an action brought under 42 U.S.C. § 1983. They request clarification as to whether "Donald Nelson and Thomas Brewer remain as plaintiffs in the cause of action against the County of Butte," as "Plaintiffs and defendants continue to read the Ruling on defendants' summary judgment motion differently." Dckt. No. 106-2. To the extent the parties are uncertain as to what claims remain for trial, they are directed the to the Final Pretrial Order, which controls the course of this action. See Fed. R. Civ. P. 16(d). As stated therein, the claims remaining for trial are:

1. Plaintiffs' Eighth Amendment claim against defendant Butte County Sheriff's Department and defendant Jones in his official capacity based on their alleged policy regarding the use of excessive force ("Plaintiffs' Eighth Amendment Claim Regarding Excessive Force Policy");

2. Plaintiff Simpson's § 1983 excessive force, assault and battery, and intentional infliction of emotional distress claims against defendant Deal ("Plaintiff Simpson's Claims Against Deal");

3. Plaintiff Canfield's Bane Act claim against defendants Demmers, Narvais, Maffucci, Mell, and Bentley, and his assault and battery claims against defendants Mell, Bentley, and Demmers ("Plaintiff Canfield's Claims Against Demmers, Narvais, Maffucci, Mell, and Bentley"); and

4. Plaintiff Canfield's § 1983 Eighth Amendment excessive force, Bane Act, and assault and battery claims against defendant Flicker ("Plaintiff Canfield's Claims Against Flicker").

Dckt. No. 87 ("PTO") at 2. Plaintiffs Donald Nelson and Thomas Brewer therefore remain as plaintiffs in the Eighth Amendment claim against defendants Jones and the Butte County Sheriff's Department regarding the excessive force policy. See also PTOat 4 (including "Whether defendant Butte County Sheriff's Department and defendant Jones violated plaintiffs' Eighth Amendment rights through an alleged policy regarding the use of excessive force" as a disputed factual issue for trial) (emphasis added); at 6 (stating that "[a]ll plaintiffs contend that the Butte County Sheriff's Department has a policy and practice of using excessive force when deputies make arrests and applying excessive force to inmates in a wanton and sadistic manner.") (emphasis added); at 8 (noting that the parties did not submit a points of law statement for the Eighth Amendment Claim Regarding the Excessive Force Policy, and directing the parties to "thoroughly address this claim in their trial briefs," unless Plaintiffs inform the court they wish to abandon this claim). Neither party objected to the Pretrial Order, which will not be modified except according to its terms or to prevent manifest injustice. Id. at 16.

Accordingly, IT IS HEREBY ORDERED that "Plaintiffs' Request for a Pretrial Clarification Conference" (Dckt. No. 106-2) is granted as set forth above.

20130311

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