Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-02974-PJH

Document 20

Filed 09/25/2007

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

J. PATRICK HERON, ESQ. (SBN 45331) Law Offices of J. Patrick Heron 1330 Lincoln Avenue, Suite 308 San Rafael, CA 94901 Tel. No.: (415) 459-4983 Fax No.: (415) 485-5338 Attorney for Plaintiff LYDIA PACHECO-CESENA KIMBERLY E. COLWELL, ESQ. (SBN 127604) KEVIN E. GILBERT, ESQ. (SBN 209236) MEYERS, NAVE, RIBACK, SILVER & WILSON 555 12th Street, Suite 1500 Oakland, CA 94607 Attorneys for all Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LYDIA PACHECO-CESENA, Plaintiff, vs. JASON FLETCHER, ANTHONY MORGAN, SAN LEANDRO POLICE DEPARTMENT, CITY OF SAN LEANDRO, a Municipal Corporation, and DOES 1 THROUGH 100, inclusive, Defendants. Case No.: C 07-02974 MJJ JOINT CASE MANAGEMENT CONFERENCE STATEMENT (Local Rule 16-9) DATE: October 9, 2007 TIME: 2:00 P.M. PLACE: Courtroom 11, 19th Floor, 450 Golden Gate Ave., San Francisco, CA

The parties in the above-entitled action submit this initial Case Management Statement and Proposed Order and request the Court to adopt it as its further Case Management Order in this case. 1. Jurisdiction and Service: This is an action based upon 42 U.S.C. § 1983, and upon art. I, Section 13 of the California Constitution. This court has jurisdiction of the claims alleged herein pursuant to 28 U.S.C. §§ 1331, 1343(3).

Joint Case Management Conference Statement [C07-02974 MJJ] - 1

Case 3:07-cv-02974-PJH

Document 20

Filed 09/25/2007

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

All parties have been served in this case, and an Answer to the Complaint on file herein has been filed on behalf of all named parties. 2. Facts: a. Plaintiff's factual description This is an action for damages based upon the alleged violations of plaintiff's federal and state constitutional rights for false arrest and the use of excessive force in effectuating plaintiff's arrest and the use of excessive force upon plaintiff while she was in police custody against two San Leandro police officers, the San Leandro Police Department and the City of San Leandro. The incident giving rise to this action occurred on February 11, 2006, at the Manor Bowl, located at 887 Manor Blvd., in the City of San Leandro, California. At approximately 2:00 A.M., Officers Jason Fletcher and Anthony Morgan of the San Leandro Police Department were seated in their automobile in the parking lot of the Manor Bowl. At this time, they noticed a vehicle pull into the parking lot, approximately 30 feet from them, and observed Lydia Pacheco-Cesena (hereinafter, "plaintiff") exit the vehicle from the front passenger's side. The officers noted that plaintiff appeared to stagger. The officers called out to the plaintiff several times without any response from her. The officers approached plaintiff and detected a strong odor of alcohol on her breath, observed that her eyes appeared blood-shot and watery, and that her gait was unsteady. After speaking to the plaintiff, the officers thought that her speech was slurred. Officer Fletcher then formed the opinion that plaintiff was unable to care for her own welfare and she was then placed under arrest for public drunkenness (Calif. Pen, Code § 647f). Plaintiff was placed into the rear of the officers' patrol car and was transported to the San Leandro Police Department Jail. Officer Fletcher reported that after being placed in the patrol car, plaintiff attempted to kick out the left rear passenger window of the vehicle. Officer Fletcher then immobilized the plaintiff by placing her in lap and should restraints. At the jail, one of the booking officers, referred to as "Jailer Thompson," noted that plaintiff had heavy make-up and had swelling around her right eye. Upon her release later that day, plaintiff's husband arrived at the jail to pick plaintiff up and noticed that plaintiff's face had abrasions, cuts and other facial injuries. Prior to the time of her arrest, plaintiff had no injuries to her face, or any

Joint Case Management Conference Statement [C07-02974 MJJ] - 2

Case 3:07-cv-02974-PJH

Document 20

Filed 09/25/2007

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

other part of her body. Plaintiff complained of severe dizziness and facial and neck pain and was thereafter taken by ambulance from the jail to the Eden Medical Center, Fremont, California, where she obtained treatment at the emergency room, and thereafter sought medical treatment with Caroline O. Garcia, M.D. b. Defendants' factual description. Defendants do not dispute the majority of the facts asserted by plaintiff herein above. Specifically, defendants admit that they observed plaintiff staggering through the parking lot, with her subsequently being arrested for violation of Penal Code §647(f) (drunk in public). However, at no time did defendants ever use excessive force or strike plaintiff, as plaintiff has alleged. Rather, defendants contend that plaintiff's injuries were the result of an earlier altercation prior to her being taken into custody. That earlier altercation appears to be the subject of a call for assistance to the Police Department. Similarly, individuals at the Manor Bowl have confirmed that a woman fitting plaintiff's description was ejected from Manor Bowl a short time prior to defendant officers encountering plaintiff in the parking lot of Manor Bowl. 3. Legal Issues: (A) (B) (C) (D) (E) 4. Whether there was probable cause to arrest Plaintiff; Whether the officers used unreasonable force in effectuating Plaintiff's arrest; Whether Plaintiff was subjected to unreasonable force once in custody; Whether Plaintiff's civil rights were violated by Defendants; Whether defendants are immune from liability for their actions.

Motions: No motions have been filed to date. Plaintiff served interrogatories and requests for the

production of document or things, and the defendants have provided responses thereto. Plaintiff's counsel have not had an opportunity to review these responses as of the date of this Statement, and therefore are not now in a position to determine whether a motion to compel further answers to interrogatories or further responses to the request for production is necessary. Similarly, Defendants served interrogatories and requests for the production of documents upon plaintiff, but plaintiff has not yet responded to these discovery requests at the present

Joint Case Management Conference Statement [C07-02974 MJJ] - 3

Case 3:07-cv-02974-PJH

Document 20

Filed 09/25/2007

Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

time. Therefore, defendants are not now in a position to determine whether a motion to compel further answers or responses to their discovery requests is necessary. Defendants will file a Motion for Summary Judgment following the completion of Plaintiff's and the percipient witness' depositions. 5. 6. 7. Amendment of Pleadings: Evidence Preservation: Disclosures: The parties do not anticipate the filing of any amended pleadings There are currently no issues pertaining to evidence preservation that the parties are aware of. Plaintiff will provide the following disclosures within ten (10) days of the date of the Case Management Conference: (A) (B) (C) The names, addresses and telephone numbers of all persons likely to have discoverable information that plaintiff may use to support her claims; Copies of all medical records; Computation of damages for medical expenses (medical bills) and for loss of earnings (income tax returns for the preceding 3 years plus any documentary material establishing plaintiff's claim for loss of earnings); (D) There are no applicable insurance agreements from which satisfaction of judgment can be made. Defendants agree to provide the relevant disclosures as delineated within FRCP Rule 26 within the time frame previously set forth in the Court's original Scheduling Order for this matter, with the initial disclosures to be completed on September 25, 2006. 8. Discovery: (A) All non-expert discovery to be completed by August 1, 2008. In this context, "completed" shall mean that all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, Plaintiff and Defendants agree to the following discovery plan:

Joint Case Management Conference Statement [C07-02974 MJJ] - 4

Case 3:07-cv-02974-PJH

Document 20

Filed 09/25/2007

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the order has been obeyed. All motions to compel discovery must be noticed on the court's calendar in accordance with the local rules of this court. (B) 9. 10. 11. 12. Initial Expert disclosures shall be completed on or before October 3, 2008, with all expert discovery completed on or by November 7, 2008. Class Actions: The parties do not anticipate any class actions in this case. Related Cases: There are no cases related to the instant action. Relief: Plaintiff seeks monetary damages only; no injunctive relief is anticipated. Settlement and ADR: The parties have agreed to a telephone settlement conference before a United States Magistrate Judge and are awaiting notification from the court as to a date for such a Settlement Conference. 13. Consent to Magistrate for All Purposes: Plaintiff consents to referring this case to a magistrate judge for all purposes. Defendants have objected referring this case to a magistrate judge except for a settlement conference 14. 15. 16. 17. Other References: Narrowing of Issues: Expedited Schedule: Scheduling: (A) (B) (C) All non-expert discovery shall be completed on or by August 1, 2008; All pretrial motions shall be filed on or by September 26, 2008; All hearings on pretrial motions shall be heard on or by November 14, 2008, or as otherwise set by this Court; The parties do not anticipate any other references. Unknown at this time. The parties are unaware of any factors requiring an expedited schedule for this matter.

Joint Case Management Conference Statement [C07-02974 MJJ] - 5

Case 3:07-cv-02974-PJH

Document 20

Filed 09/25/2007

Page 6 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

18. 19. None. 20.

Trial: Disclosures of Non-Party Interested Entities or Persons: Other Matters Facilitating Just, Speedy and Inexpensive Disposition: Respectfully submitted,

The parties request a trial date in December of 2008

None known at this time.

Dated: September 25, 2007

/s/ J. Patrick Heron J. PATRICK HERON Attorney for Plaintiff LYDIA PACHECO-CESENA /s/ Kevin E. Gilbert KEVIN E. GILBERT Attorney for Defendants JASON FLETCHER, ANTHONY MORGAN, SAN LEANDRO POLICE DEPARTMENT, AND CITY OF SAN LEANDRO

Dated: September 24, 2007

Joint Case Management Conference Statement [C07-02974 MJJ] - 6