Bridging the justice gap in New York
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KAREEM SHAMEL PERRY,
Plaintiff,
99-CV-4934 (LAP)
v. JOINT PRETRIAL ORDER
Q. MAGWOOD; R. HUMLOCK; M. HUGHES;
D. BENNETT; AND M. BARNES,
Defendants.
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Having conferred among themselves and with the Court pursuant to Rule 16 of the Federal Rules of Civil Procedure, the parties adopt the following statements, directions and agreements as the Joint Pretrial Order:
I. Trial Counsel
Trial counsel for Plaintiff is Wilmer, Cutler & Pickering, 520 Madison Avenue, New York, New York, 10022, 212-230-8800 (Adam M. Abensohn and John v.H. Pierce appearing). Trial counsel for Defendants is the New York State Attorney General, 120 Broadway, New York, New York, 10271, 212-416-8576 (Assistant Attorneys General Lee A. Adlerstein and Marc Konowitz appearing).
II. Subject Matter Jurisdiction
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1983. The subject matter of the Court is not contested.
III. Claims And Defenses To Be Tried
(1) Whether Mr. Perry was beaten by Officers Bennett and Barnes, under the supervision of Sergeant Hunlock and Lieutenant Magwood, in June 1998.
(2) Whether Mr. Perry was slashed by another inmate at the direction of Officer Hughes in July 1998.
(3) Whether any beating and/or slashing of Mr. Perry by Defendants, whether directly or under their supervision, constituted excessive force in violation of Mr. Perrys Eighth Amendment right against cruel and unusual punishment.
(4) Whether Mr. Perry has satisfied the requirements of Section 1983 by a preponderance of the evidence.
(5) Whether the doctrine of qualified immunity operates in this case at all, and, if so, whether it operates in such a way as to limit the liability of the Defendants.
IV. Jury Trial
Plaintiff has demanded a jury trial of all issues and Defendants accept Plaintiffs demand for a jury trial. Trial in this matter is expected to take three days. The parties have not consented to trial of the case by a magistrate judge.
V. Stipulations
Plaintiff and Defendants have entered into the following stipulations of fact:
A. It is hereby stipulated and agreed, by and between the parties, that:
1. Lieutenant Magwood was on duty as Watch Commander on the 3 pm to 11 pm shift on June 18, 1998;
2. Sgt. Hunlock was on duty, and assigned to the A Block, on the 3 pm to 11 pm shift on June 18, 1998;
3. Officer Bennett was on duty, and assigned to the B Block, on the 2 pm until 10 pm shift on June 18, 1998;
4. Officer Barnes was on duty, and assigned to the B Block, on the 2 pm until 10 pm shift on June 18, 1998; and
5. Officer Belizario was on duty, and assigned to the A Block M Gallery, on the 3 pm until 11 pm shift on June 18, 1998.
B. It is hereby stipulated and agreed, by and between the parties, that a custodian of records from Sing Sing Correctional Facility, if called, would testify as follows:
1. That he is knowledgeable about written logs maintained in connection with drug testing performed on inmates at the Sing Sing Correctional Facility,
2. That Plaintiffs Exhibit 1 is a urinalysis log maintained by the Sing Sing Correctional Facility in its ordinary course of business,
3. That Plaintiffs Exhibit 1 reports that Mr. Perry underwent a urinalysis test on June 24, 1998, that Lt. Magwood and Sgt. Hunlock requested that the test be performed on the basis of their suspicion of drug use by Mr. Perry, and that Mr. Perry tested negative for drug use.
C. It is hereby stipulated and agreed, by and between the parties, that Mr. Perry was housed at the following locations during his incarceration at the Sing Sing Correctional Facility:
1. Mr. Perry was housed in cell J80, in A Block, from May 1, 1998 until May 28, 1998,
2. Mr. Perry was housed in cell M-63, in A Block, from May 25, 1998 until July 6, 1998,
3. Mr. Perry was housed in cell 70B, A gallery, in Five Building, from July 6, 1998 until July 13, 1998, and,
4. Mr. Perry was housed in cell P-6, in A Block, from July 13, 1998 until September 23, 1998.
D. It is hereby stipulated and agreed, by and between the parties, that Plaintiffs Exhibit 8 is the Job Description that was in effect for the M Gallery as of June 18, 1998.
VI. Witnesses
A. A list of Plaintiffs witnesses is attached hereto as Exhibit A.
B. A list of Defendants witnesses is attached hereto as Exhibit B.
VII. Deposition Testimony
VIII. Exhibits[1]
A. A list of Plaintiffs Exhibits is attached hereto as Exhibit C.
B. A list of Defendants Exhibits is attached hereto as Exhibit D.
IX. Modification Of Order
IT IS ORDERED that the Court may, in order to prevent manifest injustice or for good cause shown, at the trial of the action or prior thereto, upon application of counsel for any party made in good faith, or upon the Courts own motion, modify this Joint Pretrial Order to the extent that the Court may deem such modification to be just and proper.
Dated: New York, New York
April 18, 2001
_________________________________
Loretta A. Preska
United States District Judge
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WILMER, CUTLER & PICKERING |
ELIOT SPITZER Attorney General of the |
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By: Adam M. Abensohn (AA-8810) John v.H. Pierce (JP-2870) |
By: Lee Alan Adlerstein (LA-7897) |
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520 Madison Avenue New York, New York 10022 212-230-8800 |
120 Broadway New York, New York 10271 212-416-8610 |
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Attorneys for Plaintiff Kareem Shamel Perry |
Attorney for Defendants Magwood, Hunlock, Hughes, Bennett, and Barnes |
Plaintiffs Prospective Witness List
1. Kareem Shamel Perry. He will testify about a range of events alleged in the complaint,
2. Officer Belazario. He will testify about prison record-keeping relating to movements of guards and inmates, as well as his own record-keeping on June 18, 1998.
3. Nurse Campbell. She will testify about Plaintiffs emergency room treatment on the evening of June 18-19, 1998.
4. Douglas McKinney. He will testify regarding his knowledge about attacks on Plaintiff.
5. Sergeant Hunlock. He will testify about events on June 18, 1998.
PERRY v. MAGWOOD, DEFENDANTS WITNESSES
1. CO Barnes: activities of June 18, 1998 in escorting plaintiff to and from interview.
2. CO Belazario: record keeping in plaintiffs gallery on June 18, 1998 and surrounding conditions.
3. CO Bennett: activities of June 18, 1998 in escorting plaintiff to and from interview.
4. Kim Capuano: medical records authentication (if necessary).
5. Nurse Campbell: examination of plaintiff during the evening of June 18-19, 1998.
6. Nurse Conklin: examinations of plaintiff on July 6, August 20 and August 25, 1998.
7. Dep. Connolly: conditions surrounding interview of June 18, 1998.
8. CO DeLoach: authentication of log books, CO postings material and inmatep-related disciplinary material (if necessary).
9. CO Ferebee: escort of plaintiff to and from clinic on evening of June 18-19, 1998.
10. CO Hughes: concerning plaintiffs allegations about July 6, 1998 incident.
11. Sgt. Hunlock: activities of June 18, 1998 in interviewing plaintiff.
12. Mary Jo Kerry: examination going into report of inmate injury of July 28, 1998.
13. CO Luther: concerning plaintiffs allegations about August 20, 1998 incident (if needed).
14. CO Mayfield: contacts with plaintiff in period prior to events in June, 1998.
15. Lieut. Magwood: events leading up to interview of June 18, 1998 and surrounding conditions.
16. CO OBrien: escort of plaintiff to and from clinic on evening of June 18-19, 1998.
17. CO Reuter: OIC A block log book and surrounding activities on evening of June 18, 1998.
18. Investigator (now Sgt.) Riester: statements made by parties concerning interview incident.
19. CO Shibah: OIC A block log book and surrounding activities on evening of June 18-19, 1998.
20. Nurse Kovadis Smith: examination going into report of inmate injury of June 19, 1998.
21. Sgt. Snyder: interview of plaintiff and investigation going into misbehavior report and disposition of August 24-26, 1998.
Plaintiffs Proposed Trial Exhibits[2]
Ex. Description Stipulations[3]
1. Urinalysis Report for Mr. Perry dated 6/24/98 **
2. L&P gallery log, 8/20/98, 3-11 shift **
3. Letter from Mr. Perry to Superintendent, 6/20/98 *
4. Letter from Mr. Perry to Superintendent, 8/20/98 *
5. M gallery log book, 6/18/98, 3 pm-11 pm shift[4] **
6. A Block OIC log book, 6/18/98-6/19/98, 11 pm-7 am shift **
7. A Block OIC log book, 6/18/98, 3 pm-11 pm shift **
8. B-Block OIC log book, 6/18/98, 3 pm-11 pm shift **
9. Job Description, M gallery, 1998 **
10. Report of Inmate Injury and Medical Report, 6/19/98 **
11. Ambulatory Health Record, 7/3/98 (redacted) **
12. Mental Health Self-Referral, 7/3/98 *
13. Officer location summary chart prepared by Sing Sing **
14. Ambulatory Health Record, 6/19/98 **
15. Transcript of proceedings before Sergeant Snyder, 8/26/98 *
16. M gallery log book, 6/19/98, 7 am-3 pm shift **
17. Photograph of Mr. Perry after slashing, 7/6/98 *
Perry v. Magwood, Defendants Exhibit List 1*
A. Statement of Ronald Hunlock, October 29, 1998. *
B. Statement of Michael Barnes, October 29, 1998. *
C. Statement of Dwayne Bennett, October 29, 1998. *
D. Ambulatory Health Record for August 29, 1997 and other dates. * *
E. Report of Inmate Injury, April 10, 1998. * *
F. Ambulatory Health Record, June 19, 1998 and other dates. * *
G. A-block OIC log book for June 18-19, 1998. * *
H. Report of Inmate Injury, June 18, 1998. * *
I. Report of Inmate Injury, June 19, 1998. * *
J. Ambulatory Health Record, July 3, 1998 and other dates. * *
K. Ambulatory Health Record, July 7, 1998 and other dates. * *
L. Refusal of Protective Custody, July 6, 1998. * *
M. Ambulatory Health Record, July 9, 1998 and other dates. * *
N. Ambulatory Health Record, July 28, 1998 and other dates. * *
O. Report of Inmate Injury, July 28, 1998. * *
P. Ambulatory Health Record, August 25, 1998. * *
Q. Disciplinary Hearing Records, August 25, 1998 and surrounding dates. *
R. Ambulatory Health Record, September 11, 1998 and other dates. * *
S. Ambulatory Health Record, September 28, 1998 and other dates. * *
T. Ambulatory Health Record, March 26, 1998 and other dates. * *
U. Ambulatory Health Record, February 28, 1998. * *
V. Statement of Kareem Perry, October 20, 1998. *
W. Memo from Kareem Perry to nurse administrator, September 2, 1999. *
X. Unsigned and Undated Affirmation, one page. *
Y. Transcript of Tier III Hearing for Kareem Perry, July 13, 1998. * *
Z. Excerpts (pages 47 through 51) of Tier III Hearing for Kareem Perry,
July 14, 1998. *
AA. Transcript of Statement of Kareem Perry to Sergeant Snyder,
August 26, 1998. * *
BB. Affirmation of Kareem Perry, June 1, 2000. * *
CC. Declaration and Statement of Kareem Perry, January 22, 2001. * *
DD. Amended Complaint. * *
EE. Rules of Inmate Conduct. *
FF. Photograph of interview room.
SAMPLE PRETRIAL ORDER
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
[PLAINTIFF], :
: ____ Civ. _______ ( )
Plaintiff, :
:
- against - : PLAINTIFFS or DEFENDANTS
: PRETRIAL ORDER
[DEFENDANT], :
:
Defendant. :
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1. NATURE OF THE CASE:
A brief non-adversarial statement of the basic nature of the case.
2. JURISDICTION AND VENUE:
State the statutory basis of federal jurisdiction and venue.[5]
Example:
Prisoners Civil Rights:
Statutory basis: 42 U.S.C. § 1983; venue: 28 U.S.C. § 1391(b)
Employment Discrimination:
Statutory basis: 42 U.S.C. § 2000e-2; venue: 42 U.S.C. § 2000e-5(f)(3)
3. JURY OR NON-JURY
State designation of case as Jury or Non-Jury.
4. SUMMARY OF UNDISPUTED FACTS
State any undisputed or stipulated facts: any facts which the parties agree exist.
5. SUMMARY OF DISPUTED FACTS
If this is a joint pretrial order, there will be entries for both the plaintiffs assertions of disputed facts and defendants assertions of disputed facts
6. ISSUES OF LAW
As a pro se litigant, you may not be required to provide this information.
7. LIST OF WITNESSES
State each witness name, title and a short summary of his/her testimony. In this section, you should list those persons whom you may call as witnesses at trial to testify about facts relevant to your case. You may have identified such witnesses in your complaint, or you may have learned about them during the discovery process. Potential witnesses may include, for example, yourself, any eyewitnesses or persons familiar with the events or issues in question, your adversary, or persons who wrote (or are responsible for maintaining) documents that you want to introduce at trial.
8. LIST OF EXHIBITS
Identify the documents to be offered at trial. Whenever possible the parties should stipulate (an agreement by both parties) as to the authenticity and admissibility of proposed exhibits. Plaintiffs documents must be identified by number, defendants documents by letter. In this section, you should list any document or other piece of physical evidence that you intend to use as an exhibit at trial. You may have identified relevant documents in your complaint or during the discovery process. Potential exhibits can be any type of physical evidence that has relevance to your case, and may include, for example, letters, contracts, specific rules and procedures, written statements, reports or forms completed by your adversary or others, photographs, medical records or tape recordings.
9. NATURE OF RELIEF
Describe the nature of the relief sought, such as the amount of monetary damages, injunctive or declaratory relief. Your complaint should contain a similar section and you can simply restate that here. You generally cannot seek damages or other type of relief at trial that you did not ask for in your complaint or amended complaint.
10. ESTIMATE OF TRIAL TIME
State the number of trial days required for presentation of your side of the case. Both parties are generally required to estimate for the Court how much time they will need to present their evidence at trial, including cross-examinations. If an estimate is not required in the pretrial order, be prepared to answer this question at the pretrial conference or at the beginning of the trial. In calculating the estimated length of your case, be respectful of the Courts time or you may be limited by the Court in the amount of time you will be allowed for trial.
SO ORDERED:
Dated: New York, New York
___________________
________________________________
[NAME OF JUDGE]
UNITED STATES DISTRICT JUDGE
CONSENTED TO:
________________________________
Signature
Name of Pro Se Plaintiff or Plaintiffs Attorney
Address
Telephone Number
_______________________________
Signature
Name of Pro Se Defendant or Defendants Attorney
Address
Telephone Number
The following are other matters or entries which may be part of a (joint) pretrial order:
A) MODIFICATION OF ORDER:
IT IS FURTHER ORDERED that the Court may, in order to prevent manifest injustice or for good cause shown, at the trial of the action or prior thereto upon application of counsel for either party, made in good faith, or upon motion of the Court, modify this Pretrial Order upon such conditions as the Court may deem just and proper.
B) PREVIOUS SUBSTANTIVE MOTIONS
List all previous substantive motions: for example, motions to dismiss, summary judgment motions, motions for separate trial of issues, for consolidation of cases, for change of venue, or for pendente lite relief and the disposition or status thereof.
C) PRECLUSION:
Witnesses or exhibits not listed in accordance with the terms of this Pretrial Order shall be precluded at trial.
D) EVIDENTIARY RULINGS
Describe requested evidentiary rulings: objections to admissions of any anticipated testimony or statement with citation to the applicable Federal Rules of Evidence.
E) TRIAL COUNSEL
Name, address and telephone of person who will try the case for the party (e.g., yourself and your adversarys attorney).
F) AMENDMENT & DISMISSALS
State any requested amendments to the pleadings, dismissals as to any unserved parties, additions or substitutions of parties, or disposition as to defaulting parties. Proposed amendments should include the basis for the amendment, the reason why the amendment is being raised at this time, and any objections.
G) CASE SUMMARY
A brief, one-paragraph description of the case which may be read to the jury.
H) DEPOSITION TESTIMONY
Deposition testimony to be read at trial should be provided to the Court at least one week prior to trial. The relevant testimony should be underlined and copies should be provided to all adversaries. Any objections should appear in the margin after bracketing the testimony to which the objection refers.
Bench Trials
A bench trial is a trial without a jury. If you have chosen to have a bench trial, no jury will be selected and the judge will decide both the facts and the law of your case. In a bench trial, you should be prepared to wait for a decision on your claims because judges presiding over bench trials often reserve decision and wait until sometime after the trial has concluded to decide the case. Although this manual was written primarily for parties in jury trials, the majority of information contained herein also applies to bench trials.
When appearing before the Court in a bench trial, you do not need to prepare jury-related documents such as proposed voir dire questions, a proposed jury charge and a verdict sheet. Therefore, you may skip the sections on Jury Selection (pp. 16-22) and Sending a Case to the Jury (pp. 77-91). Unless otherwise directed by the judge, all the remaining chapters in this manual, including the rules of evidence and civil procedure, still apply in bench trials.
Consent to Trial by Magistrate Judge
Each case filed in the District Court is assigned to a District Judge. However, the District Judges may refer portions of your case, usually pretrial matters and discovery proceedings, to the Magistrate Judge, who then reports to the District Judge. A Magistrate Judge is appointed by a panel of District Court Judges to serve for a term of eight years. 28 U.S.C. § 631.
A United States Magistrate Judge may, upon the consent of all the parties, conduct any or all proceedings in a civil case, including a jury or non-jury trial, and order entry of a final judgment. 29 U.S.C. § 636(c). Consent forms are available from the Pro Se Office. The decision to consent to proceed before a Magistrate Judge is totally voluntary. The District Judge to whom your case is assigned must approve the reference to a Magistrate Judge for disposition.
The advantage to having a Magistrate Judge preside over your case is that s/he can often schedule your trial much sooner than a District Judge would be able to because the District Judge must preside over criminal as well as civil cases in the District Court. A trial before a Magistrate Judge proceeds in the same manner as a trial before a District Judge.
An appeal from a judgment entered by a Magistrate Judge may be taken directly to the United States Court of Appeals for the Second Circuit in the same manner as an appeal from any other judgment of a District Court. 28 U.S.C. § 636(c)(3). See pp. 101-107. However, the parties may also choose to have the appeal heard by the District Court at the same time the parties consent to trial by United States Magistrate Judge. In that case, an appeal taken to the District Court may only be reviewed by the Court of Appeals upon permission from the District Court. Fed. R. Civ. P. 73(d).
The Strategy (or Theory) of Your Case
At various points during the trial, you will make strategic decisions on a variety of issues, including the order of witnesses, the questions to ask and not to ask, and on what evidence to use. It is important for you to know that there is no single correct way to present a case. Even experienced trial lawyers will differ on how to present a case. The goal, of course, is to put forward the most coherent, logical, and persuasive case that you can.
You should decide on your theory of the case as early as possible. The theory of the case should be logical and tie all of your evidence together so that the jury will understand what happened. Generally, your theory of the case will explain motive, causation and damages. After explaining the facts in your opening statement and presenting the facts through your evidence, you will be able to argue your theory of the case to the jury in your closing argument. It is very important that you create a theory of your case that you can prove to the jury and that is logical.
Example: The defendants claim that they did not strike the plaintiff, yet the plaintiff has medical records or pictures revealing that s/he had bruises following the incident. The plaintiffs case should focus on this evidence.
Example: The defendant denies that harassment occurred, but plaintiff has a witness to the alleged harassment who is employed by defendant and lacks an incentive to lie. The plaintiffs case should highlight this witness because the employee does not stand to gain from testifying against his/her employer.
Note: Other strategy suggestions appear throughout this manual in the form of Practice Tips. As with strategy generally, lawyers will occasionally differ as to the timing or appropriateness of some of these tips in particular cases, and ultimately you must decide what is best in presenting your case.
[1] Exhibits with one star indicate that no party objects to the exhibit on grounds of authenticity. Exhibits with two stars indicate that no party objects on any ground with the exception of relevance.
[2] Plaintiff reserves the right to use as exhibits mental health records that have not been produced as of the date of this order.
[3] With respect to all exhibits, both parties reserve objections as to relevance.
[4] May use as demonstrative exhibit.
* Includes materials marked by Defendants for cross-examination only
[5] If you raised any state law claims in your complaint, you must also describe the statutory basis for the those claims. For example: N.Y. Exec. Law § 296 et seq. (McKinney 1993 & Supp. 1995) (unlawful discriminatory practices); N.Y. Labor Law § 740 (prohibiting retaliatory personnel action by employers).