Shepard v. Lopez

          AMENDED PRETRIAL ORDER ORDER FOLLOWING TELEPHONIC TRIAL CONFIRMATION HEARING HELD ON JUNE 20, 2016

         The parties should note that this pretrial order is amended only to reflect the change in the time scheduled for the commencement of trial, from 8:30 a.m. to 1:00 p.m. The trial date remains the same, August 2, 2016. Therefore, jury trial in this case is now scheduled for August 2, 2016 at 1:00 p.m. in Courtroom 5.

         This civil rights action, brought pursuant to 42 U.S.C. § 1983, proceeds on the initial Complaint filed pro se by state prisoner Lamont Shepard (“Plaintiff”) on March 30, 2011, against defendants Sergeant J. Lopez, Correctional Officer Z. Dean, and Correctional Officer J. Campbell (collectively, “Defendants”), for use of excessive force in violation of the Eighth Amendment. This case is presently set for trial on August 2, 2016 at 1:00 p.m. before District Judge Dale A. Drozd in Courtroom 5.

         On June 13, 2016, Plaintiff filed his pretrial statement. (ECF No. 102.) On June 16, 2016, Defendants filed their pretrial statement. (ECF No. 103.) Having reviewed the pretrial statements and the remainder of the file, the Court now issues a pretrial order.

         On June 20, 2016 at 1:30 p.m., a telephonic trial confirmation hearing was held before District Judge Dale A. Drozd. Plaintiff appeared telephonically on his own behalf, and defense counsel John P. Walters, California Deputy Attorney General, appeared telephonically on behalf of Defendants.

         I. Jurisdiction and Venue

         The Court has subject matter jurisdiction over this federal civil rights action. 28 U.S.C. § 1331. Venue is proper because the conduct allegedly occurred in this judicial district. 28 U.S.C. § 1391. There is no dispute as to the Court’s jurisdiction or the propriety of venue.

         II. Jury Trial

         All parties request a trial by jury. Fed.R.Civ.P. 38(b).

         III. Facts and Evidentiary Issues

         A. Defendants’ Undisputed Facts

1. Plaintiff was an inmate at California State Prison, Corcoran on December 13, 2008.

2. Plaintiff was involved in an incident in his housing unit, and was charged with threatening a peace officer.

3. Plaintiff was evaluated by Licensed Vocations Nurse E. Nelson, who referred Plaintiff to the prison hospital for further evaluation.

4. Defendants Campbell, Dean, and Lopez were not involved in the incident in the housing unit, but were present to escort and secure Plaintiff in the prison hospital.

5. Dr. Cohen evaluated Plaintiff and ordered Plaintiff to be injected with Haldol.

6. Defendants were present when Plaintiff was injected.

7. Plaintiff alleges that Defendants used excessive force while restraining him for the injection.

8. Defendants deny restraining Plaintiff or using any force at all.

         B. Plaintiff’s Undisputed Facts

1. Defendants are very knowledgeable about the allegations in the Complaint.

2. Defendants Z. Dean, J. Lopez and J. Campbell are also aware that each of them held Plaintiff down in a 3 point position to be injected with 10 mg. of Haldol.^[1]

3. Defendants are knowledgeable about the information alleged throughout the Complaint.

4. Defendants are also aware that Plaintiff filed a 602 complaint against defendants J. Campbell, Z. Dean, and J. Lopez.

5. Plaintiff is entitled to all relief sought in the Complaint.^[2]

6. Defendants are aware that they violated Plaintiffs federal rights.^[3]

7. Defendants Z. Dean, Campbell, and J Lopez are aware that they used unnecessary excessive force against Plaintiff in the form of a 3 point.^[4]

         C. Defendants’ Disputed Factual Issues

         Whether Defendants used excessive force against Plaintiff, and the nature and extent of any injuries sustained by Plaintiff.

         D. Plaintiff’s Disputed Factual Issues

         The allegations made in the Complaint filed May 19, 2014 regarding defendants Campbell, Dean, and Lopez’s use of unnecessary, excessive, and unreasonable force that caused Plaintiff to suffer serious pain and extreme discomfort.

         E. Defendants’ Disputed Evidentiary Issues

         None known at this time.

         F. Plaintiff’s Disputed Evidentiary Issues

         Plaintiff anticipates disputes concerning the evidence Defendants intend to present at trial. Plaintiff disputes whether Defendants were forthcoming with discovery requested by Plaintiff, and whether Defendants denied Plaintiff requested discovery as a tactical advantage over Plaintiff.

         IV. Relief Sought

         Plaintiff seeks compensatory and punitive damages in the combined sum of $1.3 million.

         V. Points of Law

         This action proceeds only on Plaintiff’s § 1983 claim against defendants Campbell, Dean, and Lopez for use of excessive force in violation of the Eighth Amendment. No other claims are at issue.

         A. Imposition of Liability ...