Lopez v. Homan et al, No. 3:2019cv00098 - Document 49 (D. Nev. 2022)

Court Description: ORDER granting ECF No. 48 Joint Pretrial Order. This case is set for trial on the stacked calendar on Monday, 3/13/2023 at 8:30 am, courtroom 3. Calendar Call will be held on Tuesday, 2/21/2023 at 10:00 am, courtroom 3. Trial Briefs will b e due to this Court on Tuesday, 2/21/2023. This pretrial order has been approved by the parties to this action as evidenced by their signatures of the signatures of their attorneys herein. The order is hereby entered and will govern the trial of the case. This order may not be amended except by court order and based upon the parties agreement or to prevent manifest injustice. Signed by Judge Robert C. Jones on 8/31/2022. (Copies have been distributed pursuant to the NEF - HKL)

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Lopez v. Homan et al Doc. 49 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 1 of 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 PAUL LOPEZ, 10 Plaintiff, 11 DENNIS A. HOMAN, et al., Defendants. 14 15 I. 16 17 18 JOINT PRETRIAL ORDER v. 12 13 Case No. 3:19-cv-00098-RCJ-CSD A. NATURE OF THE ACTION AND CONTENTIONS OF THE PARTIES. NATURE OF ACTION AND IDENTIFICATION OF PARTIES. Plaintiff, Paul Lopez (“Mr. Lopez”), is presently in the custody of the Nevada 19 Department of Corrections (“NDOC”) on interstate compact to Trenton, New Jersey. 20 Mr. Lopez was incarcerated at Ely State Prison in Ely, Nevada at all times relevant to this 21 action. Defendants Dennis A. Homan, Scott R. Manning, Ronald D. Bryant, Robert V. Huston, 22 23 William A. Gittere, Timothy E. Filson, William Reubart, David M. Tristan, and James E. Dzurenda, were employees of the Nevada Department of Corrections at all times relevant 24 25 26 27 28 30 31 Page 1 of 15 Dockets.Justia.com Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 2 of 15 1 2 herein. Plaintiff’s Civil Rights Complaint (Complaint) alleges eight causes of action against defendants: 1 3 • 4 Count I – Due Process under the 14th Amendment and Article 1 § 8 of the Nevada Constitution; 5 • 6 Count II – Due Process under the 14th Amendment and Article 1 § 8 of the Nevada Constitution; 7 • 8 Count III – Due Process under the 14th Amendment and Article 1 § 8 of the Nevada Constitution; 9 • 10 Count IV – Due Process under the 14th Amendment and Article 1 § 8 of the Nevada Constitution; 11 • 12 Count V – Cruel and Inhumane Treatment under the 8th Amendment and Article 1 § 6 of the Nevada Constitution; 13 • 14 Count VI – Due Process under the 14th Amendment and Article 1 § 8 of the Nevada Constitution; 15 • 16 Count VII – Due Process under the 14th Amendment and Article 1 § 8 of the Nevada Constitution; 17 • 18 Count VIII – Cruel and Inhumane Treatment under the 8th Amendment and Article 1 § 6 of the Nevada Constitution; 19 20 B. 21 CONTENTIONS OF THE PARTIES. 1. Plaintiff’s Contentions 22 Count I – Denial of due process against Defendants Homan and Bryant: 23 Mr. Lopez alleges Defendants Homan and Bryant submitted a notice of charges 24 25 against him for murder with no evidence to support the charge because no one had 26 died. 27 28 30 31 Defendants Sandoval, Cegavske, Laxalt, Sisolak, and Ford were dismissed from counts VII and VIII via the granting of their partial motion for summary judgment. (ECF No. 25, No. 27, and No. 28). 1 Page 2 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 3 of 15 1 2 3 4 5 6 Count II – Denial of due process against Defendant Manning: Mr. Lopez alleges Defendant Manning served him a notice of charges for a murder violation despite a complete lack of evidence to support the service of such a charge because no one had died. Count III – Denial of due process against Defendants Huston: Mr. Lopez alleges Defendant Huston found him guilty of murder without any 7 evidence to support the charge and denied Mr. Lopez’s request to call witnesses at his 8 disciplinary hearing. 9 10 11 Count IV – Denial of Due Process against Defendant Filson: Mr. Lopez alleges Defendant Filson placed him on HRP (highly resistant 12 prisoner) status based on a murder charge that Defendant Filson knew lacked any 13 evidentiary basis because no one had died. 14 15 16 Count V – Cruel and inhumane treatment against Defendant Filson: Mr. Lopez alleges Defendant Filson knowingly placed him under extreme, unconstitutional conditions on HRP status. 17 18 19 Count VI – Denial of due process against Defendants Filson and Tristan: Mr. Lopez alleges Defendants Filson and Tristan upheld the murder charge and 20 related disciplinary sanctions with full knowledge that the charge lacked any 21 evidentiary basis because no one had died. 22 23 Count VII – Denial of due process against Defendants Dzurenda, Tristan, Filson, Gittere, and Reubart: 24 Mr. Lopez alleges Defendants Dzurenda, Tristan, Filson, Gittere, and Reubart 25 promulgated, permitted, and/or enforced a policy, practice, or custom of allowing 26 prisoners to be charged with murder violations when no one has died. 27 28 30 31 Count VIII – Cruel and inhumane treatment against Defendants Dzurenda, Tristan, Filson, Gittere, and Reubart: Page 3 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 4 of 15 1 Mr. Lopez alleges Defendants Dzurenda, Tristan, Filson, Gittere, and Reubart 2 promulgated, permitted, and/or enforced a policy, practice, or custom of allowing 3 prisoners to be charged, convicted, and sanctioned for murder violations even though 4 no one has died. 5 2. Defendants’ Contentions 6 Defendants contend that the evidence does not support Plaintiff’s allegations. 7 Defendants incorporate any Affirmative Defenses from the Answer as it pertains to 8 Defendants. Defendants deny that Plaintiff’s constitutional rights have been violated. 9 Defendants allege that Plaintiff fails to provide sufficient evidence to prove an 8th 10 Amendment, 14th Amendment, or Due Process violation, or similar violations under the 11 Nevada State Constitution occurred. 12 Defendants further contend that no conspiracy transpired to violate Plaintiff’s 13 14 15 16 17 18 19 20 Constitutional rights. C. RELIEF SOUGHT Mr. Lopez seeks compensatory and punitive damages as well as declaratory and injunctive relief in this case. II. STATEMENT OF JURISDICTION. This Court has original jurisdiction over this case pursuant to 28 U.S.C. § 1331 given that Plaintiff’s claims assert constitutional violations under 42 U.S.C. § 1983. III. UNCONTESTED FACTS DEEMED MATERIAL IN THE ACTION. 21 1. Mr. Lopez was an inmate at ESP at all times relevant to this case. 22 2. Defendants were employees of NDOC at all times relevant to this case. 23 3. Two prisoners were assaulted related to this case. 24 4. Neither prisoner who was assaulted died as a result of their injuries. 25 5. Mr. Lopez was charged with a MJ 16: Murder violation. 26 6. No one died stemming from the MJ 16: Murder violation against Mr. Lopez. 27 7. Mr. Lopez was in his cell at the time of the inmate assaults. 28 8. Mr. Lopez had no physical participation in the assaults. 30 31 Page 4 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 5 of 15 1 9. Mr. Lopez was placed on HRP status as a result of the assaults. 2 10. Mr. Lopez was not allowed to call witnesses at his disciplinary hearing. 3 11. Defendant Huston claims to have spoken to the prisoners responsible for physically 4 committing the assaults for purposes of Mr. Lopez’s disciplinary hearing. 5 12. Prison regulations allowed for a violation charge of Battery. 6 13. Prison regulations allowed for a violation charge of Assault. 7 14. Prison regulations allowed for a violation charge of Mayhem. 8 IV. CONTESTED ISSUES OF FACT TO BE TRIED AND DETERMINED UPON TRIAL. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 A. PLAINTIFF’S CONTESTED FACTS 1. Whether Mr. Lopez should have been charged with a murder violation stemming from the allegations in the notice of charges? 2. Whether there was any evidence sufficient to charge Mr. Lopez with a murder violation? 3. Whether AR 707 allowed Mr. Lopez to be charged with a violation of attempt or conspiracy to commit murder? 4. Whether Mr. Lopez was charged with a violation of an attempt or conspiracy to commit murder rather than just murder itself? 5. Whether Mr. Lopez was ever told by either defendant that he was being charged with attempt or conspiracy to commit murder rather than murder itself for purposes of his disciplinary proceedings? 6. Whether AR 707 lists or defines any lesser included offenses to murder? 7. Whether there was any evidence to establish malice aforethought in finding Mr. Lopez guilty of murder? 8. Whether Mr. Lopez was entitled to a finding of some evidence of malice aforethought before being found guilty of the murder charge? 28 30 31 Page 5 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 6 of 15 1 2 9. Whether either of the actual physical assailants ever stated that Mr. Lopez ordered them to commit the assaults? 3 10. Whether Mr. Lopez was entitled to have any statements made to Defendant 4 Huston by the physical assailants made part of his disciplinary hearing record in aid of his 5 defense and/or appeal? 6 7 11. or mayhem stemming from the allegations in the notice of charges rather than murder. 8 9 12. Whether Mr. Lopez should have been placed on HRP status by Defendant Filson stemming from the allegations in the notice of charges? 10 11 Whether Mr. Lopez could have been charged with a violation of assault, battery, 13. B. 12 Whether the conditions on HRP as alleged by Mr. Lopez were unconstitutional? DEFENDANTS’ CONTESTED FACTS 1. Whether Plaintiff introduced sufficient evidence supporting the facts set 13 forth above, i.e., whether he can prove that the individual defendants violated his Eighth 14 Amendment, 14t Amendment, or Due Process rights, or the equivalent rights under the 15 Nevada State Constitution, by improperly charging him with violations related to murder 16 and/or attempted murder. 17 2. Whether any form of damages is available to Plaintiff for any alleged failures. 18 3. Facts as provided in Defendants’ Answer and Counterclaim. 19 20 C. CONTESTED ISSUES OF FACT IN THE CASE AS AGREED UPON BY THE 21 PARTIES 22 The parties essentially agree that all the essential facts regarding Mr. Lopez’s claims are 23 contested. 24 V. CONTESTED ISSUES OF LAW AGREED UPON BY THE PARTIES. 25 1. Whether any of Mr. Lopez’s constitutional rights were violated? 26 27 VI. CONTESTED ISSUES OF LAW TO BE TRIED AND DETERMINED UPON TRIAL. 28 A. 30 31 PLAINTIFF Page 6 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 7 of 15 1 2 1. Whether the alleged actions of Defendants violated Mr. Lopez’s due process rights under the 14th Amendment and Article 1 §8 of the Nevada Constitution? 3 2. Whether the alleged actions of Defendants violated Mr. Lopez’s right against 4 cruel and inhumane treatment under the 8th Amendment and Article 1 §6 of the Nevada 5 Constitution? 6 B. 7 1. Did Defendants individually violate Plaintiff’s constitutional rights? 8 9 2. Did Defendants, through their actions, violate Mr. Lopez’s due process rights under the 14th Amendment and Article 1 §8 of the Nevada Constitution? 10 11 12 DEFENDANTS 3. Did Defendants, through their actions, violated Mr. Lopez’s right against cruel and inhumane treatment under the 8th Amendment and Article 1 §6 of the Nevada Constitution? 13 VII. EXHIBITS. 14 15 A. EXHIBITS AGREED UPON BY THE PARTIES THAT CAN BE ADMITTED AT TRIAL WITHOUT OBJECTIONS2 16 1. NDOC Investigation Detail Report 17 2. Notice of Charges Disciplinary Forms I – III 18 3. 4/3/17 Ad-Seg Classification Results Notice 19 4. 4/14/17 Notice of Ad-Seg Classification Hearing 20 5. 4/14/17 Segregation Informative 21 6. 4/19/17 Ad-Seg Classification Results Notice 22 7. 5/2/17 HRP Classification Review Memo 23 8. 5/4/17 HRP Classification Placement Memo 24 9. 7/13/17 Ad-Seg (HRP) Classification Results Notice 25 26 27 28 30 31 Plaintiff is still awaiting discovery responses from defendants in the form of Answers to Request for Production of Documents, Answers to Admissions from Defendants Tristan, Homan, Dzurenda, Huston, Bryant, Manning, Filson, Gittere, and Reubart, and Answers to Interrogatories from Defendants Tristan, Homan, Dzurenda, Huston, Bryant, Manning, Filson, Gittere, and Reubart. Said responses are expected to be included in the exhibits to be used at trial. 2 Page 7 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 8 of 15 1 10. 8/4/17 Ad-Seg (HRP) Classification Results Notice 2 11. 9/6/17 HRP Classification Status Form 3 12. 9/12/17 1st Level Disciplinary Appeal and 9-26-17 Response from Filson 4 13. 2/14/18 HRP Classification Status Form 5 14. 8/30/18 HRP Classification Status Form Reviewed 9/17/18 6 15. 8/30/18 HRP Classification Status Form Reviewed 9/27/18 7 16. 9/9/18 Kite re HRP Housing in Infirmary 8 17. 9/12/18 Med Kite re pain from eating 9 18. 9/20/18 Kite re HRP Housing in Infirmary 10 18. AR 707 (Disciplinary Process) 11 19. AR 734 (Disciplinary Detention) 12 20. Plaintiff’s Request for Production of Documents (Pending) 13 21. Request for Admissions to David Tristan (Pending) 14 22. Request for Admissions to Dennis Homan (Pending) 15 23. Request for Admissions to James Dzurenda (Pending) 16 24. Request for Admissions to Robert Huston (Pending) 17 25. Request for Admissions to Ronald Bryant (Pending) 18 26. Request for Admissions to Scott Manning (Pending) 19 27. Request for Admissions to Timothy Filson (Pending) 20 28. Request for Admissions to William Gittere (Pending) 21 29. Request for Admissions to William Reubart (Pending) 22 30. Request for Interrogatories to David Tristan (Pending) 23 31. Request for Interrogatories to Dennis Homan (Pending) 24 32. Request for Interrogatories to James Dzurenda (Pending) 25 33. Request for Interrogatories to Robert Huston (Pending) 26 34. Request for Interrogatories to Ronald Bryant (Pending) 27 35. Request for Interrogatories to Scott Manning (Pending) 28 36. Request for Interrogatories to Timothy Filson (Pending) 30 31 Page 8 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 9 of 15 1 37. Request for Interrogatories to William Gittere (Pending) 2 38. Request for Interrogatories to William Reubart (Pending) 3 4 B. PLAINTIFF’S EXHIBITS SUBJECT TO OBJECTIONS 5 6 DOCUMENT BATES NOS. 7 8 9 10 11 12 13 14 15 16 C. DEFENDANTS’ EXHIBITS SUBJECT TO OBJECTIONS DOCUMENT BATES NOS. 17 18 19 20 21 22 D. None taken 23 24 DEPOSITIONS E. OBJECTIONS TO EXHIBITS 25 The parties reserve the right to object to exhibits on the basis of hearsay, relevance 26 (FRE 402), unfairly prejudicial, confusion of issues, misleading the jury, cumulative (FRE 27 403), and improper character evidence (FRE 404).The parties further reserve the right to 28 30 31 Page 9 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 10 of 15 1 object to the introduction of documents not produced during discovery pursuant to the rules 2 of procedure. 3 4 F. 5 6 STIPULATIONS As to the following additional exhibits, the parties have reached the stipulations stated regarding admissibility, authenticity, or identification: 7 a) 8 Stipulations as to Plaintiff’s exhibits: Defendants stipulate to the admissibility, authenticity, or identification of Plaintiff’s exhibits as agreed upon above. 9 b) Stipulations as to Defendants’ Exhibits: Plaintiff stipulates to the 10 admissibility, authenticity, or identification of defendants’ exhibits as agreed upon 11 above. 12 G. 13 EVIDENCE IN ELECTRONIC FORMAT FOR PURPOSES OF JURY DELIBERATIONS. 14 Counsel for the parties agree to comply with the Court’s Rules and Orders 15 regarding submission of evidence in electronic format. 16 VIII. WITNESSES. 17 18 19 20 21 22 23 24 25 26 A. PLAINTIFF’S WINTESSES Plaintiff wishes to reserve the right to call the following persons at trial: 1. Paul Lopez # 1231398; OS #01906571 P.O Box 861 Trenton, NJ 08625 2. Mitereo Ramirez #1009268 Nevada Department of Corrections 3. Jacob Stephens #1144891 Nevada Department of Corrections 27 28 30 31 4. Gerardo Garcia #86723 Page 10 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 11 of 15 1 2 3 4 Nevada Department of Corrections 5. Ramon Iniguez (Paroled from Nevada Dept. of Corrections, present address unknown) 6. Dennis A. Homan Nevada Attorney General’s Office 5 6 7. Scott R. Manning Nevada Attorney General’s Office 7 8 9 10 11 8. Ronald Bryant Nevada Attorney General’s Office 9. Robert Huston Nevada Attorney General’s Office 12 13 14 15 10. William A. Gittere Nevada Attorney General’s Office 11. Timothy Filson Nevada Attorney General’s Office 16 17 12. William Reubart Nevada Attorney General’s Office 18 19 20 21 22 23 24 13. David M. Tristan Nevada Attorney General’s Office 14. James E. Dzurenda Nevada Attorney General’s Office 15. Brian Sandoval Nevada Attorney General’s Office 25 26 16. Barbara Cegavske Nevada Attorney General’s Office 27 28 30 31 17. Adam P. Laxalt Page 11 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 12 of 15 Nevada Attorney General’s Office 1 2 18. Stephen F. Sisolak Nevada Attorney General’s Office 3 4 19. Charles Daniels Nevada Department of Corrections 5 6 7 20. Aaron D. Ford Nevada Attorney General’s Office 8 9 10 12 21. Nancy Katafias Tort Fund Manager State of Nevada Nevada Attorney General’s Office 13 22. Defendants’ witnesses. 11 14 15 B. DEFENDANT’S WITNESSES 16 Defendants wish to reserve the right to call the following persons at trial: 17 1. Plaintiff, Paul Lopez, c/o Travis Barrick, 540 E. St. Louis Avenue, Las Vegas, 18 19 20 21 22 23 24 25 26 27 28 30 31 Nevada 89117. 2. Dennis A. Homan, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 3. Scott R. Manning, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 4. Ronald D. Bryant, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 5. Robert V. Huston, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 6. William A. Gittere, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. Page 12 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 13 of 15 1 2 3 4 5 6 7 8 9 10 11 7. Timothy E. Filson, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 8. William Reubart, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 9. David M. Tristan, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 10. James E. Dzurenda, Defendant, c/o Lance C. White, Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 11. All Plaintiff’s witnesses. Both parties reserve the right to interpose objections to the calling of any named witness listed above prior to trial. 12 13 14 15 16 17 18 19 20 21 22 IX. MOTIONS IN LIMINE. 1. It is anticipated that Mr. Lopez will be filing motions in limine to preclude disclosure of his prison disciplinary records unrelated to the claims in his complaint; 2. It is anticipated that Lopez will be filing motions in limine to preclude disclosure of his criminal records unrelated to the claims in his complaint; 3. It is anticipated that Lopez will be filing motions in limine to preclude disclosure of his prison classification records unrelated to the claims in his complaint; 4. It is anticipated that Mr. Lopez will be filing motions in limine to preclude his appearance at trial in prison garb. 5. It is anticipated that Mr. Lopez will be filing motions in limine to preclude defendants from wearing their uniforms at trial; 23 24 25 26 27 X. AVAILABLE TRIAL DATES. Counsel expressly understands that the Clerk shall set the trial of this matter at the convenience of the Court’s Calendar. The attorneys have met and jointly and agree that they are not available for trial until February 2023. 28 30 31 Page 13 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 14 of 15 1 2 XI. TIME EXPECTED FOR TRIAL. Based on the above, the attorneys speculate time expected for trial will be four days. 3 4 5 6 7 8 Dated this 18th day of August 2022. Dated this 18th day of August 2022. By: _/s/ Travis N. Barrick______ Travis N. Barrick, Esq. (SBN 9257) Gallian Welker & Associates, LC 540 E. St. Louis Avenue Las Vegas, NV 89104 Attorneys for Plaintiff Paul Lopez By: _/s/ Lance C. White__________ Lance C. White, Esq. (SBN 10247) Nevada Attorney General’s Office 100 N. Carson Street Carson City, NV 89701 Attorneys for the Defendants 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 Page 14 of 15 Case 3:19-cv-00098-RCJ-CSD Document 49 Filed 08/31/22 Page 15 of 15 1 XI. ACTION BY THE COURT. 2 Monday, 3/13/2023 at 8:30 am crtrm 3 Calendar This case is set for trial on the fixed/stacked calendar on __________________. 3 Tuesday, 2/21/2023 at 10:00 am crtrm 3 Call will be held on ______________________________________. Trial Briefs will 4 Tuesday, 2/21/2023 be due to this Court on______________________ 5 This pretrial order has been approved by the parties to this action as evidenced by their 6 signatures of the signatures of their attorneys herein. The order is hereby entered and will 7 govern the trial of the case. This order may not be amended except by court order and based 8 upon the parties’ agreement or to prevent manifest injustice. 9 DATED: August 31, 2022 10 11 12 _______________________________ UNITES STATES DISTRICT COURT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 Page 15 of 15

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