Lankford v. Taylor et al

Filing 106

ORDER: IT IS ORDERED that: (1) Plaintiff's MIL No. 1 (Doc. 87 ) is denied. (2) Defendants' MIL No. 1 (Doc. 88 ) is denied. (3) Defendants' MIL No. 2 (Doc. 89 ) is denied. (4) Defendants' MIL No. 3 (Doc. 90 ) is denied. (5) Defendants' MIL No. 4 (Doc. 91 ) is denied. (6) The parties are ordered to meet and confer with respect to the discovery issues raised in Defendants' MIL Nos. 2 and 4. If the parties are unable to resolve those issues after sin cere consultation, Defendants may file a motion for discovery sanctions. Any such motion must be filed by November 30, 2020. Plaintiff's response must be filed by December 14, 2020. Any reply must be filed by December 21, 2020 [see attached Order for details]. Signed by Judge Dominic W Lanza on 11/2/20. (MAW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Kirk Lankford,

10

Plaintiff,

11

ORDER

v.

12

No. CV-17-02797-PHX-DWL

Joseph Taylor, et al.,

13

Defendants.

14
15

This is a prisoner civil rights action brought by Plaintiff Kirk Lankford (“Plaintiff”).

16

Following summary judgment, the remaining claims to be tried are (1) Plaintiff’s § 1983

17

claim in Count Three against Assistant Warden Benjamin Griego (“Griego”), in which

18

Plaintiff alleges that Griego violated his First Amendment rights by ordering other prison

19

officials to search Plaintiff’s prison cell, and then confiscate certain property found within

20

the cell, in retaliation for Plantiff’s filing of a lawsuit against the State of Hawaii and certain

21

Hawaii officials, and (2) Plaintiff’s state-law conversion claim in Count Nine against

22

Griego, several other prison officials, and CoreCivic (together, “Defendants”), also

23

stemming from the confiscation of Plaintiff’s property following the cell search. (Docs.

24

58, 64.)

25

Now pending before the Court are five motions in limine (“MILs”), which were

26

filed in June 2020. (Docs. 87-91.) Although the Court’s usual practice is to hear oral

27

argument on MILs during the final pretrial conference, that con ference has been repeatedly

28

postponed at the parties’ joint request due to the COVID-19 pandemic. (Docs. 96, 105.)

1

Accordingly, rather than allow the MILs to remain pending indefinitely, the Court will rule

2

on them in advance of the upcoming trial-setting conference. (Doc. 105.) If the parties so

3

desire, they may further address the Court’s rulings during that conference.

4

I.

Plaintiff’s MIL No. 1

5

Plaintiff moves under Rules 401, 403, and 609 to exclude evidence concerning the

6

nature of his underlying conviction (second-degree murder) and the length of his sentence

7

(150 years). (Doc. 87.) Plaintiff acknowledges that the fact of his conviction is admissible

8

for impeachment purposes under Rule 609 but argues that any additional details concerning

9

his conviction and sentence are irrelevant and unfairly prejudicial. (Id.) Plaintiff also

10

agrees to stipulate that he has been convicted of a felony. ( Id.)

11

Defendants oppose Plaintiff’s motion. (Doc. 103.) Defendants contend that a party

12

seeking to admit a criminal conviction for impeachment purposes under Rule 609 is entitled

13

to introduce not only the fact of conviction but also “its general nature.” (Id. at 1-2.)

14

Defendants further contend that a conviction for second-degree murder doesn’t “carry the

15

same stigma” as other types of convictions, such as sex offenses. ( Id. at 2.) Finally,

16

Defendants argue that the length of Plaintiff’s sentence is relevant because it “goes directly

17

to his incentive to tell the truth—because Plaintiff will spend the rest of his life in prison

18

regardless of what happens at trial, he has nothing to lose by perjuring himself. Defendants,

19

on the other hand, will be exposed to significant civil and/or criminal penalties if they

20

commit perjury.” (Id. at 3.)

21

Plaintiff’s motion will be denied. In United States v. Osazuwa, 564 F.3d 1169 (9th

22

Cir. 2009), the Ninth Circuit addressed “the scope of inquiry into prior convictions” under

23

Rule 609. Id. at 1175-77. On the one hand, the court held that “the prior conviction, its

24

general nature, and punishment of felony range [are] fair game for testing the defendant’s

25

credibility.” Id. at 1175 (alteration in original) (internal quotation marks omitted). The

26

court also cited, with approval, a Fifth Circuit decision suggesting that “the nature of the

27

crime[]” is a permissible area of inquiry. Id. (citation omitted). On the other hand, the

28

court held that it is impermissible to delve into “collateral details and ci rcumstances

-2-

1

attendant upon the conviction” because “unfair prejudice and confusion . . . could result

2

from eliciting details of the prior crime.” Id. (internal quotation marks omitted). Applying

3

those standards, the court reversed Osazuwa’s conviction for assault of a prison guard

4

because the prosecution had gone too far when impeaching Osazuwa with evidence of his

5

prior conviction for bank fraud, by asking him questions about the “specific dishonest acts”

6

upon which the earlier conviction was based. Id. at 1176.

7

Here, Defendants do not intend to delve into the details underlying Plaintiff’s

8

conviction for second-degree murder. Instead, they merely wish to identify the nature of

9

the conviction. Under Osazuwa, this is “fair game” for purposes of Rule 609. Id. at 1175.

10

Defendants also will be allowed to introduce evidence concerning the length of

11

Plaintiff’s sentence. Osazuwa holds that a defendant’s exposure to “punishment of felony

12

range” is another permissible area of inquiry. Although this nomenclature is somewhat

13

ambiguous, other courts have construed it as authorizing mention of the length of the

14

underlying sentence. See, e.g., United States v. Snow, 2020 WL 4814348, *1-2 (D. Ariz.

15

2020) (construing Osazuwa as allowing the introduction of evidence concerning “the prior

16

conviction, its nature, and the term of imprisonment” but precluding the introduction of

17

“collateral details of [the] conviction”). Indeed, in Osazuwa itself, the government

18

questioned the defendant about the length of his bank fraud sentence and the Ninth Circuit

19

did not suggest that question was improper. 564 F.3d at 1176 (“Defendant was asked how

20

much time he had spent in prison for bank fraud . . . .”). This is also the rule in other

21

Circuits. See, e.g., United States v. Estrada, 430 F.3d 606, 616 (2d Cir. 2005) (“The

22

overwhelming weight of authority . . . suggests that . . . inquiry into the ‘essential facts’ of

23

the conviction, including the nature or statutory name of each offense, its date, and the

24

sentence imposed is presumptively required by [Rule 609], subject to balancing under Rule

25

403.”); United States v. Albers, 93 F.3d 1469, 1480 (10th Cir. 1996) (“The cross-

26

examination should be confined to a showing of the essential facts of convictions, the

27

nature of the crimes, and the punishment.”) (internal quotation marks omitted); United

28

States v. Barnes, 622 F.2d 107, 109 (5th Cir. 1980) (“[W]e do not find any error in the

-3-

1

prosecutor’s eliciting from Barnes the length of his confinement.”); United States v. Miller,

2

478 F.2d 768, 770 n.4 (4th Cir. 1973) (“[T]he more reasonable practice . . . is [to permit

3

inquiry into] . . . the name of the crime, the time and place of conviction, and the

4

punishment.”) (alterations in original) (internal quotation marks omitted).

5

Finally, the Court is not persuaded that Rule 403 requires the exclusion of relevant

6

evidence concerning the nature of Plaintiff’s conviction and the length of Plaintiff’s

7

sentence. Credibility will be key in this case and Defendants should be allowed to

8

introduce relevant evidence bearing on Plaintiff’s credibility.

9

II.

Defendants’ MIL No. 1

10

Defendants move under Rules 401 and 403 “to exclude at trial any evidence or

11

argument regarding, or reference to, claims and defendants that were previously dismissed

12

in this matter.” (Doc. 88 at 1.) Defendants clarify that “[t]his is not to say that Plaintiff

13

cannot mention the dismissed defendants’ names, or question them as to their personal

14

knowledge of the remaining claims, but only that Plaintiff should not be permitted to

15

present evidence or argument regarding the claims that were previously brought against

16

them, or the fact that they were former[l]y defendants in this action.” (Id. at 3.)

17

Plaintiff opposes the motion. (Doc. 99.) As an initial matter, Plaintiff contends that

18

“[i]t is difficult to discern precisely what Defendants are asking the Court to do ,” in that

19

the motion simultaneously asks the Court to preclude reference to other individuals who

20

were formerly defendants and acknowledges that such individuals will act as witnesses at

21

trial. (Id. at 1.) On the merits, Plaintiff contends that some of the information covered by

22

the motion is “unquestionably relevant” because it goes to the motive and knowledge of

23

the former defendants. (Id. at 2.) Plaintiff also contends that the fact he sued (albeit

24

unsuccessfully) some of the individuals who will be witnesses at trial is relevant to show

25

those witnesses’ potential bias against him. (Id. at 2-3.)

26

Defendants’ motion will be denied because it is overbroad. The Court cannot say,

27

as a categorical matter, that all evidence pertaining to the now-dismissed counts and

28

defendants will be irrelevant at trial. “[M]otions in limine should rarely seek to exclude

-4-

1

broad categories of evidence, as the court is almost always better situated to rule on

2

evidentiary issues in their factual context during trial.” Colton Crane Co. v. Terex Cranes

3

Wilmington, Inc., 2010 WL 2035800, *1 (C.D. Cal. 2010).

4

III.

Defendants’ MIL No. 2

5

During the summary judgment process, Plaintiff asserted that two non-party

6

CoreCivic employees (Birdsong and Jackson) were present during the challenged search

7

and made statements to Plaintiff that suggested the search was improper. Defendants now

8

move to preclude Plaintiff from offering evidence of these alleged statements at trial,

9

arguing that (1) to the extent Plaintiff wishes to testify a bout the alleged statements, such

10

testimony would constitute impermissible hearsay because the statements “were not made

11

by party-opponents, and do not fall within any enumerated hearsay exception,” and (2)

12

Plaintiff also should be precluded from introducing the statements because he failed to

13

timely disclose them, in violation of Rules 26 and 37. (Doc. 89 at 1-2 & n.2.) Separately,

14

Defendants move to preclude or limit testimony from two of Plaintiff’s fellow inmates

15

(Rabellizsa and Phanpradith), arguing that the former (who was Plaintiff’s cellmate) should

16

only be allowed to testify about matters based on his personal knowledge and the latter

17

lacks any personal knowledge. (Id. at 3-4.)

18

Plaintiff opposes the motion. (Doc. 100.) As for Birdsong and Jackson, Plaintiff

19

argues their statements are not hearsay under Rule 801(d)(2)(D) because they were

20

employees of a party opponent, CoreCivic, and the statements concerned matters within

21

the scope of their employment. (Id. at 1-3.) Plaintiff also contends that “the statements [of

22

Birdsong and Jackson] were adequately disclosed by Mr. Lankford such that any perceived

23

‘late’ disclosure is harmless, and a motion in limine is not an appropriate vehicle for

24

disclosure sanctions.” (Id. at 3 n.3.) As for Rabellizsa and Phanpradith, Plaintiff contends

25

they were able to witness the challenged search, and thus have personal knowledge, and in

26

any event “to the extent that Defendants have a hearsay or f oundation objection—and it is

27

doubtful that trial counsel would be so obtuse as to ask what [Plaintiff] told them —that

28

objection can be made and sustained at trial outside the jury’s hearing.” ( Id. at 3.)

-5-

1

Defendants’ arguments largely lack merit. CoreCivic remains a defendant in this

2

action and all parties seem to agree that Birdsong and Jackson were CoreCivic employees

3

at the time they made the statements at issue. Thus, Defendants’ assertion that “[t]hese

4

statements were not made by party-opponents” (Doc. 89 at 2) is incorrect. “Under Federal

5

Rule of Evidence 801(d)(2)(D), a statement is not hearsay and may be admitted against an

6

opposing party if the statement was made by the party’s agent or employee on a matter

7

within the scope of that relationship and while it existed.” Weil v. Citizens Telecom Servs.

8

Co., 922 F.3d 993, 999 (9th Cir. 2019) (internal quotation marks omitted). As for

9

Rabellizsa and Phanpradith, it is unclear to the Court what, exactly, these witnesses are

10

expected to say at trial. Given that uncertainty, it would be premature to make any blanket

11

rulings as to whether an adequate foundation exists for these witnesses to testify. This is a

12

matter best resolved at trial.

13

The one remaining matter to be addressed is Defendants’ argument that Plaintiff did

14

not timely disclose Birdsong’s and Jackson’s alleged statements during the discovery

15

process. Because this issue is only addressed in a cursory manner in a footnote in

16

Defendants’ motion, the Court lacks enough information to properly address it.

17

Additionally, as discussed infra, the Court will allow the parties to submit supplemental

18

briefing concerning a different request for discovery sanctions made by Defendants.

19

Accordingly, Defendants may address the disclosure issues related to the Birdsong and

20

Jackson statements in that briefing.

21

IV.

Defendants’ MIL No. 3

22

According to Defendants, most of the evidentiary materials that Plaintiff submitted

23

during the summary judgment process were “devoted to matters that ar e completely

24

unrelated to the remaining claims and Defendants at issue in this lawsuit.” (Doc. 90 at 1.)

25

Thus, Defendants move “to exclude evidence or argument regarding, or reference to,

26

unrelated alleged constitutional violations, retaliation, and othe r incidents.”

27

Defendants also contend that, to the extent Plaintiff seeks to introduce these other matters

28

under Rule 404(b) as evidence of “Defendants’ propensity to retaliate and cover up their

-6-

(Id.)

1

wrongful conduct,” the request fails because Plaintiff’s evidence of the other incidents is

2

vague and outdated (or undated) and the introduction of the other incidents would be

3

prejudicial. (Id. at 2-3.)

4

Plaintiff opposes Defendants’ motion. (Doc. 101.) First, Plaintiff contends the

5

motion is overbroad because it merely cross-references a 357-page document and states

6

that “the bulk” of the evidence discussed in that document should be excluded, without

7

identifying with particularity the matters to be excluded. ( Id. at 2.) Plaintiff also notes that

8

Defendants’ insistence on filing such an overbroad motion is “puzzling” because “Plaintiff

9

has given no indication that he intends to re-assert claims that were dismissed at the

10

summary judgment phase and . . . this Court has appointed experienced pro bono counsel

11

who surely understands which claims remain at issue.” (Id. at 2 n.1.) Second, Plaintiff

12

contends that at least some of the matters mentioned in the cross-referenced document are

13

relevant—for example, Defendants admit they have overwritten the video footage of the

14

challenged search. (Id. at 2-3.)

15

This motion, like Defendants’ MIL No. 1, is overbroad and will be denied for that

16

reason. Colton Crane, 2010 WL 2035800 at *1. Indeed, Defendants’ proposed order asks

17

the Court to order “that evidence or argument regarding, or reference to, unrelated alleged

18

constitutional violations, retaliation, and other incidents, including but not limited to those

19

discussed in [certain paragraphs of] Plaintiff’s Statement of Facts in Support of Response

20

to Defendants’ Motion for Summary Judgment . . . are excluded at trial.” (Doc. 90-1 at 1,

21

emphasis added.) The Court is unwilling to issue such an open-ended order, which would

22

leave the parties guessing as to which evidence remains in play.

23

V.

24

Defendants’ MIL No. 4
In their final MIL, Defendants move “to exclude all witnesses Plaintiff failed to
(Doc. 91 at 1.)

Defendants contend they served an

25

disclose during discovery.”

26

interrogatory on Plaintiff in October 2018 that required him to identify all witnesses he

27

intended to call at trial, as well as a summary of each witness’s anticipated testimony, and

28

Plaintiff responded by disclosing himself, the “named Defendants,” and several other

-7-

1

inmates but otherwise refusing to identify his witnesses. (Id. at 1-2.) Defendants also

2

contend that Plaintiff subsequently refused to supplement this response. ( Id. at 2.)

3

Defendants argue that exclusion of the undisclosed witnesses is therefore required under

4

Rule 37. (Id. at 2-3.)

5

Plaintiff opposes Defendants’ motion. (Doc. 102.) First, Plaintiff argues the motion

6

is procedurally improper because Defendants’ counsel did not attempt to confer with

7

Plaintiff’s counsel before filing it, in violation of LRCiv 7.2(j). ( Id. at 1-2.) Second,

8

Plaintiff argues that Defendants are not entitled to relief on the merits because the

9

interrogatory in question was propounded after the discovery deadline, he (despite being

10

pro se at the time) lodged an objection to it, and Defendants never moved to compel. ( Id.

11

at 2-3.) Third, Plaintiff argues alternatively that, because this was a prisoner pro se case

12

throughout the discovery period, Rule 26(a)(1)(B)(iv) was applicable and he was only

13

required to make his witness disclosures 30 days before trial (which deadline hasn’t expired

14

yet). (Id. at 3.) Finally, Plaintiff argues that, “[a]t a bare minimum,” the Court should

15

allow the parties to address Defendants’ request for discovery sanctions through “full

16

briefing,” not the MIL process. (Id.)

17

This is another instance where the Court would benefit from additional briefing—

18

the page limits applicable to MILs forced the parties to address the issues in somewhat

19

abbreviated fashion and the arguments raised in Plaintiff’s response have some force and

20

require a reply. Additionally, the Court’s hope is that, because Plaintiff is now represented

21

by appointed counsel, the meet-and-confer process will be more fruitful than it was during

22

earlier stages of the case. Accordingly, Defendants’ motion will be denied without

23

prejudice to their ability to file, if necessary, a motion for discovery sanctions.

24

Accordingly, IT IS ORDERED that:

25

(1)

Plaintiff’s MIL No. 1 (Doc. 87) is denied.

26

(2)

Defendants’ MIL No. 1 (Doc. 88) is denied.

27

(3)

Defendants’ MIL No. 2 (Doc. 89) is denied.

28

(4)

Defendants’ MIL No. 3 (Doc. 90) is denied.

-8-

1

(5)

Defendants’ MIL No. 4 (Doc. 91) is denied.

2

(6)

The parties are ordered to meet and confer with respect to the discovery

3

issues raised in Defendants’ MIL Nos. 2 and 4. If the parties are unable to resolve those

4

issues after sincere consultation, Defendants may file a motion for discovery sanctions.

5

Any such motion must be filed by November 30, 2020. Plaintiff’s response must be filed

6

by December 14, 2020. Any reply must be filed by December 21, 2020.

7

Dated this 2nd day of November, 2020.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-9-