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

Case 4:07-cv-01165-SBA

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LAW OFFICE OF DENNIS CUNNINGHAM

DENNIS CUNNINGHAM, SBN 112910 W. GORDON KAUPP, SBN 226141 115 ½ Bartlett Street San Francisco, California 94110 Telephone: (415) 285-8091 Facsimile: (415) 285-8092 Attorneys for Plaintiff EDMUND G. BROWN JR., Attorney General of the State of California TYLER B. PON Supervising Deputy Attorney General WILFRED T. FONG (State Bar No. 154303) Deputy Attorney General 1515 Clay Street P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 622-2114 Facsimile: (510) 622-2121 Attorneys for Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA - OAKLAND DIVISION WILLIAM HENRY COUSINS, Case No. C-07-01165 SBA Plaintiff, v.

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BILL LOCKYER, (former) ATTORNEY GENERAL OF CALIFORNIA, in his individual capacity; RICHARD RIMMER (former) DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR), in his individual capacity; ROSEANNE CAMPBELL (former) WARDEN OF MULE CREEK STATE (in her individual capacity); and JOHN/JANE DOES 1 THROUGH x. Defendants.

JOINT CASE MANAGEMENT CONFERENCE STATEMENT DATE: September 12, 2007 TIME: 2:30 p.m. LOCATION: Appearing telephonically Honorable Phyllis J. Hamilton

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Case 4:07-cv-01165-SBA

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1.

Jurisdiction and Service Defendants do not dispute that jurisdiction and venue are proper pursuant to 42 U.S.C. §

1983, however, defendants dispute that there is any factual basis for such claims. Defendants have accepted or waived service, including acceptance by counsel for all defendants of service of the First Amended Complaint. Defendants reserve the right to challenge, by a motion to dismiss, Plaintiff's First Amended Complaint based on lack of subject matter jurisdiction, immunities, or any other proper ground as may be applicable. 2. Facts According to Plaintiffs On January 12, 2000, Plaintiff was convicted of Cal. Penal Code § 290(f)(1), Failing To Inform Law Enforcement Agency of New Address Where Registration Is Based On A Felony Conviction, and sentenced to an indeterminate term of 25 years to life. Mr. Cousins was placed into the custody of the California Department of Corrections and Rehabilitation on or around January 2000. The lawful basis for Mr. Cousin's incarceration was removed on October 8, 2003 when the sole statute Plaintiff was convicted under was declared unconstitutional by the California Court of Appeal, First Appellate District, in People v. North (2003) 112 Cal.App.4th 621. The State, represented by the office of the California Attorney General, failed to appeal the decision, thus on October 8, 2003 it became settled law that Cal. Penal Code § 290(f)(1) was unconstitutional. Plaintiff is informed and believes that after the change in law Defendants made no effort to discover whether the sentences of persons in their custody were affected by the change in law. Nor did they inform the trial court that Plaintiff's sentence was discrepant despite the California Supreme Court's clear ruling in In re Sandel, 64 Cal.2d 412 (1966). Mr. Cousins was held for approximately 1 year and 7 months after he should have been freed, until the California Supreme Court issued an Order to show cause to the Director of the Department of Corrections and Rehabilitation to explain why the Plaintiff should not be released, and the Santa Clara County District Attorney's office conceded that Plaintiff's petition for writ 2
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LAW OFFICE OF DENNIS CUNNINGHAM

of habeas corpus should issue. The writ was conceded, according to the assistant district attorney, because "[a] conviction under an unconstitutional statute is a denial of due process and invalid." Plaintiff is informed and believes that there are an unknown number of other prisoners whose sentences were affected by the invalidation of Penal Code § 290(f)(1), who remain in custody beyond the expiration of any lawful authority, or who may be entitled to a reduction in their current sentence, or release. According to Defendants Defendants contend that the facts of this case did not create any legal duty, giving rise to civil liability, owed to plaintiff. 3. Legal Issues According to Plaintiff Plaintiff argues that Defendants were under a constitutional duty to take steps to effect his release after it became known that there was no longer a lawful basis for his incarceration. Plaintiff disputes Defendants' claim of qualified or prosecutorial immunity. According to Defendants Defendants contend that they owed no legal duty to plaintiff in this case. 4. Motions Plaintiff anticipates filing a Motion for Summary Judgment as to Defendants' liability for Plaintiff's prolonged detention. Defendants anticipate filing a motion to dismiss the First Amended Complaint. 5. Amendment of Pleadings Plaintiff anticipates no further amendments to the pleadings. 6. Evidence Preservation Plaintiff requests that all records pertaining to persons responsible for maintaining or establishing a system or practice of tracking changes in law and determining the effect on incarcerated persons be preserved.

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7.

Disclosures Counsel for the parties are working cooperatively to exchange material in a complete and

cost effective manner. 8. Discovery No discovery has been undertaken to date. From the perspective of Plaintiff initial discovery should include disclosure of the names and positions of persons most knowledgeable of the responsibilities and duties that Plaintiff asserts were owed to him. 9. Class Actions As noted, there may well be other prisoners in the same situation. 10. Related Cases None. 11. Relief Plaintiff will seek compensatory and punitive damages to be determined by the trier of fact, and such other relief as may be called for in regards to others similarly situated. 12. Settlement and ADR According to Plaintiffs: Plaintiff believes that a settlement conference with a Magistrate Judge after the dispositive motions are decided could prove worthwhile. According to Defendants: Defendants are agreeble to a settlement conference after the Court rules on dispositve motions. 13. Consent to Magistrate Judge for All Purposes Defendants have declined to proceed before a Magistrate Judge. 14. Other References The case is not suitable for binding arbitration, a special master or other references. 15. Narrowing of Issues The issue of whether Defendants owed Plaintiff a duty is still being discussed between counsel; however, it appears that motions will be necessary to address these matters. 4
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16.

Expedited Schedule Not applicable.

17.

Scheduling Proposed dates: Discovery Cut-Off (Fact) Designation of Experts Expert Discovery Cut-Off Hearing of Dispositive Motions Pre-Trial Conference Trial March 3, 2008 April 7, 2008 June 2, 2008 August 11, 2008 October 6, 2008 October 13, 2008

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18.

Trial All parties demand trial by jury.

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19.

Disclosure of Non-Party Interested Entities or Persons None.

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Other None.

Dated: September 6, 2007

LAW OFFICE OF DENNIS CUNNINGHAM

By: ___/s/ Gordon Kaupp_____________ W. GORDON KAUPP Attorneys for Plaintiff

Dated: September 6, 2007

OFFICE OF THE CALIFORNIA ATTORNEY GENERAL

By: __/s/ Wil Fong_______________ WILFRED T. FONG Attorneys for Defendants 5
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