The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER AND ORDER TO SHOW CAUSE
Plaintiff is a state prisoner proceeding in pro per and seeking relief pursuant to 42 U.S.C. § 1983.*fn1 Following resolution of the parties' cross-motions for summary judgment, the court issued a pretrial order on October 25, 2012, to which plaintiff objected. Accordingly, the undersigned vacated the March 11, 2013 trial date pending resolution of plaintiff's objections to the pretrial order. Plaintiff has now also filed a motion for a settlement conference and a motion for production of incarcerated witnesses. Defendants oppose both motions.
This action proceeds on the original complaint filed January 29, 2010
alleging that defendants Martel, Long, Olivas, Machado, Palubicki,
Wilson, and Whitehead failed to protect plaintiff from an assault by
inmate Manuel Urbina, in violation of the Eighth Amendment.*fn2
Plaintiff's claim arises under two theories. Plaintiff first
asserts that defendants knew or should have known that Urbina, a Level
IV general population inmate, was violent and that they disregarded
this information when they allowed Urbina to commingle with Level III
Special Needs Yard ("SNY") inmates such as plaintiff, thereby causing
an excessive risk to plaintiff's safety. Second, plaintiff asserts
that defendants knew or should have known more generally that
commingling Level III inmates with Level IV inmates would result in an
excessive risk to plaintiff's safety.
Discovery in this case commenced on August 13, 2010, ECF No. 16, and
concluded on January 10, 2011, ECF No. 18. Following the close of
discovery, the parties filed cross-motions for summary judgment. ECF
Nos. 32, 41. On October 26, 2011, the former magistrate judge assigned
to this case recommended that both motions be denied.*fn3
ECF No. 48. In recommending that plaintiff's motion be
denied, the court found that plaintiff failed to support his theories
that defendants should have known there was a potential risk to his
safety due to Urbina's history and/or due to the commingling of Level
IV inmates with Level III inmates. As to defendants' motion, the court
determined that defendants failed to discuss plaintiff's SNY status
and the mixing of general population inmates with SNY inmates. The
court next determined that a genuine issue of material fact existed on
the question of whether Level IV general population inmates should
have been allowed to commingle with Level III SNY inmates such as
plaintiff. The district court adopted these findings and
recommendations in relevant part on March 31, 2012. ECF No. 55.
Following receipt of the parties' pretrial statements, the court issued a pretrial order on October 25, 2012. ECF No. 63. There, the court found fault with both parties' witness lists and directed them to submit modified witness lists. As to the disputed factual issues remaining, the court listed the following: (1) whether defendants were deliberately indifferent to a substantial risk of serious harm to plaintiff in violation of the Eighth Amendment when, through action or inaction, they permitted inmate Urbina to be in contact with plaintiff, which caused injury to plaintiff; (2) whether defendants are entitled to qualified immunity; and (3) the damages, if any, suffered by plaintiff.
Plaintiff filed objections to the pretrial order on December 26, 2012. ECF No. 69. Generally, plaintiff objects to the proposed testimony of many of defendants' witnesses and the defendants' intention to admit evidence of plaintiff's felony conviction and those of plaintiff's proposed incarcerated witnesses for impeachment purposes. (Plaintiff submits that he and his witnesses will take a polygraph test to prove their truthfulness). Additionally, plaintiff requests that discovery be reopened.
Also on December 26, 2012, plaintiff filed a motion for a settlement conference and a motion for production of incarcerated witnesses. Defendants oppose both motions.
A. Plaintiff's Motion for a Settlement Conference In his motion for a settlement conference, plaintiff asks the court to schedule a settlement conference and/or mediation session, stating that he has "a realistic expectation of a figure in the 4 to low 5 figure range." Pl.'s Mot. for Settlement Conf. at 2 (ECF No. 70). Defendants oppose the motion, stating that they "are unwilling to make an offer in any amount" and that the conference "would be a waste of judicial time and resources." ECF No. 76. In light of the apparent futility of a settlement conference, plaintiff's motion will be denied.
B. Plaintiff's Objections to Pretrial Order
1. Request to Reopen Discovery
In his objections to the court's pretrial order, plaintiff submits a request to reopen discovery. This request too will be denied.
On August 13, 2010, a discovery and scheduling order issued in this case setting December 3, 2010 as the discovery deadline. ECF No. 16. On December 7, 2010, defendants filed a motion to modify the scheduling order, which the court granted by order dated December 9, 2010. ECF Nos. 17, 18. The discovery deadline was extended to January 10, 2011, giving the parties nearly five months to conduct discovery.
On December 27, 2010, plaintiff for the first time asked for a continuance of the discovery deadline, which the court denied on February 24, 2011 for lack of good cause. See ECF Nos. 19, 31. Since then, plaintiff asked the court twice to reopen discovery, and each time the court denied plaintiff's requests for lack of good cause. See ECF Nos. 37 (denied by ECF No. 38), 62 (denied by ECF No. 63).
Plaintiff now repeats his request to reopen discovery. See ECF No. 69 at 10. As with his previous requests, plaintiff fails to explain why he was unable to procure the documents he now seeks during the five-month period when discovery was open. Furthermore, he fails to describe the timely discovery that he has propounded, fails to identify how the defendants' responses to any of his discovery requests have been inadequate; and fails to adequately explain why he did not file any motions to compel during the open period of discovery. While plaintiff states that he did not file a motion to compel because he was awaiting a ruling on his request for a continuance, plaintiff does not explain why it was necessary for the court to rule on that request before he could file a discovery motion. The court also notes that his request was filed only two weeks before the modified discovery deadline. Plaintiff does not account for his failure to file a motion to compel at any point during the 4.5 months before his continuance request. Accordingly, plaintiff's request to reopen discovery is denied, and any further requests to reopen discovery will be disregarded.
2. Objections to Defendants' Impeachment Evidence
Plaintiff also objects to the defendants' anticipated impeachment of testifying inmates, including plaintiff, with their felony convictions. Such impeachment is proper. Fed. R. Evid. 609(a). Plaintiff's alternative offer to take a polygraph test is unavailing, as polygraph results are not an appropriate way to bolster credibility. See United States v. Cordoba, 194 F.3d 1053, 1063 (9th Cir. 1999), cert. denied, 529 U.S. 1081(2000). The objection is overruled.
C. Plaintiff's Motion for Production of Incarcerated Witnesses
In his motion for production of incarcerated witnesses, plaintiff asks the court to order the appearances of five incarcerated witnesses: Ira Parthemore, Thomas Hightower, Kenneth Tarpley, William Stewart Neely, and Manuel Urbina. The first four witnesses have submitted declarations describing the matters to which they will testify voluntarily. The final incarcerated witness, Urbina, is the inmate who attacked plaintiff; his testimony in this case would not be obtained voluntarily.
The following facts were deemed undisputed on consideration of the parties' cross-motions for summary ...