Ellsworth v. Prison Health Services Incorporated et al

Filing 164

ORDER The reference to the Magistrate Judge is withdrawn as to: (a) Plaintiff's Motion in Limine Re: Plaintiff's Criminal History (Doc. 138);(b) Plaintiff's Motion to Appoint Expert Witness for Trial (Doc. 139); and(c) Plaintiff's Renewed Motion for Sanctions Against Defendants/Request for Show Cause Hearing (Doc. 144); the court FURTHER ORDERS that: the Plaintiff's Motion in Limine Re: Plaintiff's Criminal History (Doc. 138 ) is GRANTED to the extent that the def endants may not introduce evidence of the specificsof the plaintiff's felony conviction, but it is DENIED insofar as the defendants are seeking to introduce evidence of the date of plaintiff's felony conviction and that he is currently ser ving a ten year sentence for that conviction. This evidence will be admitted for the limited purpose ofimpeachment. the Plaintiff's Motion to Appoint Expert Witness for Trial (Doc. 139 ) is DENIED; the Plaintiff's Renewed Motion for Sancti ons AgainstDefendants/Request for Show Cause Hearing (Doc. 144 ) is DENIED; the Plaintiff's Objection to Defendants['] Notice of Appearance/Request to Remove Defendants['] Counsel (Doc. 148 ) is DENIED; and the plaintiff's " ;Motion for District Court Order Re: Stephen D. Brown Affidavit" (Doc. 155 ) is GRANTED. The plaintiff's "Motion for Transcripts" (Doc. 157 ) is DENIED; the plaintiff's "Motion to Reconsider Magistrate's Order&quo t; (Doc. 163 ) is denied; the parties are to appear telephonically on the 13th day of January, 2014 at 10:00 a.m. for the purpose of discussing the time frames which need to be determined with respect to their Joint Pretrial Statement and Final Pret rial Order (Doc. 154). Defense counsel shall provide the Court with a telephone number where plaintiff may be contacted and make the necessary arrangements for his appearance by telephone at the hearing; and with respect to the Joint Pretrial Statement and Final Pretrial Order (Doc. 154 ), in light of the rulings herein, the court strikes page 18:19-23. Signed by Senior Judge Robert C Broomfield on 12/12/2013.(KMG)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 James Jackson Ellsworth, 13 Plaintiff, 14 15 vs. Prison Health Services, Inc., et al. 16 Defendants. 17 18 After the denial of ) ) ) ) ) ) ) ) ) ) ) No. CIV 11-8070 PCT RCB(MEA) O R D E R defendants’ motion for summary 19 judgment, plaintiff pro se James Jackson Ellsworth filed a host 20 of pre-trial motions. 21 are currently pending before the court: (1) a motion in limine 22 regarding his criminal history (Doc. 138); (2) a 23 appoint an expert witness (Doc. 139); (3) 24 sanctions (Doc. 144); (4) an “Objection to Defendant’s [sic] 25 Notice of Appearance/Request to Remove Defendants[’] Counsel” 26 (Doc. 148). 27 court order as to the affidavit of Stephen D. Brown (Doc. 155), 28 and a motion to obtain a court transcript (Doc. 157). More specifically, the following motions motion to a renewed motion for In addition, the plaintiff filed a motion for a Although 1 the Honorable Mark E. Aspey, United States Magistrate Judge 2 recently issued an order denying those two motions (Doc. 162), 3 as more fully explained herein, this court is vacating that 4 order. 5 The court may quickly dispatch with plaintiff Ellsworth’s 6 motion for sanctions because it is moot. 7 motions warrant closer examination, however. 8 I. The plaintiff’s other “Renewed Motion for Sanctions” 9 The plaintiff is requesting that the court issue an order 10 to show cause and find the defendants in contempt for allegedly 11 failing to cooperate with him in preparing and filing the joint 12 proposed 13 plaintiff is also seeking a court order requiring the defendants 14 to pay him $65.00 for the costs he allegedly incurred in filing 15 this motion. pre-trial order (“JPPTO”). As a sanction, the 16 Granting the plaintiff’s motion to extend the time in which 17 to file the JPPTO, the parties had until May 20, 2013, by which 18 to file that document. 19 Tellingly, the plaintiff brought this motion ten days prior to 20 that court ordered deadline. 21 premature. See Ord. (Doc. 133) at 6:12-161, ¶ (2). The plaintiff’s motion was, thus, 22 More significantly, however, the plaintiff’s motion is moot 23 because he has already received the primary relief which he is 24 seeking therein. Accepting plaintiff’s claim that he did not 25 26 27 1 For uniformity and ease of reference, all citations to page numbers of docketed items are to the page assigned by the court’s case management and electronic case filing (CM/ECF) system. 28 -2- 1 receive a copy of the JPPTO, which the court sent to his last 2 known address (Doc. 145 Notice of Electronic Filing), the 3 defendants provided the plaintiff with another copy on August 4 29, 2013. 5 The foregoing also renders moot the plaintiff’s “supplemental 6 motion 7 extension of time in which to file the JPPTO. 8 Mot. (Doc. 150) at 3. 9 entirety plaintiff’s motion for sanctions (Doc. 144). 10 11 II. for See Ord. (Doc. 160) at 1:27-2:1 (citation omitted). sanctions[,]” which includes a request for an See Pl.’s Supp. Accordingly, the court denies in its Brown Affidavit The plaintiff’s motion as to the Brown affidavit has its 12 origins in the inadvertent disclosure to him of “sensitive and 13 confidential information . . . produced in error by Lexington 14 Insurance Company (“Lexington”), a non-party[.]” 15 93) at 1:22-23. See Mot. (Doc. That disclosure resulted in motion practice 16 before this court including a hearing on September 11, 2012. 17 Doc. 109. Understandably, the Magistrate Judge was not as 18 familiar as is this court with the many nuances surrounding that 19 inadvertent disclosure, especially the representations during 20 that hearing made to this court by defense counsel Mary A. Palma 21 and fully discussed below. In light of the foregoing, the court 22 is vacating the Magistrate Judge’s order (Doc. 162) denying the 23 plaintiff’s “Motion for District Court Order Re: Stephen D. 24 Brown Affidavit” and his “Motion for Transcripts” (Doc. 157), 25 and considers those two motions next. 26 Lexington is the insurer for the parent company of the 27 28 -3- 1 defendant Prison Health Services, Inc. (“PHS”).2 Sept. 11, 2012 2 Audio Transcript (“Tr.”) at 9:45:52 a.m. - 9:45:55 a.m. 3 an additional insured on that policy. 4 9:46:00 a.m. PHS is Id. at 9:45:56 a.m. - The court assumes familiarity with Lexington’s 5 inadvertent disclosure to the plaintiff of certain documents 6 (“the Lexington documents”). Some of that background bears 7 repeating though, as it directly relates to the plaintiff’s 8 current motion to obtain the affidavit of Stephen D. Brown, PHS’ 9 Senior Director of Professional 10 appendices attached thereto. 11 categories of Lexington Liability Claims, and the Those three appendices outline the documents which PHS deems to be 12 protected: (1) Protected Health Information; (2) Work Product; 13 and (3) Commercially Sensitive Documents. 14 9:53:57 a.m. Id. at 9:51:22 a.m. - Mr. Brown’s affidavit was exhibit “C” to PHS’ 15 motion to strike the Lexington documents from the record and 16 require the plaintiff to return those documents (“the motion to 17 strike”). Defs.’ Mot. (Doc. 93) at 12-14 (emphasis omitted). 18 After granting that motion to strike, the court also granted 19 PHS’ separate motion to, among other things, seal the Brown 20 affidavit and the Lexington documents (“the sealing order”). 21 See Ord. (Doc. 111). 22 During the hearing on PHS’ motion to strike, the plaintiff 23 24 25 26 27 28 2 As this court has previously recognized, “[a]fter PHS’s parent corporation was acquired, PHS was renamed” to Corizon Health, Inc. Ellsworth v. Prison Health Services Inc., 2012 WL 1107754, at *1 n. 1 “The (citation omitted); see also Ord. (Doc. 66) at 1, n. 1 (same). rights and obligations of PHS are properly asserted by and against Corizon Health, Inc.[,]” as PHS concedes. See Defs.’ Mot. (Doc. 94) at 1:26, n. 1. For consistency, the court will refer to this defendant as “PHS.” -4- 1 maintains that the court “ordered” PHS’ counsel, Mary A. Palma,3 2 to provide the Brown affidavit to him. 3 2. Pl.’s Mot. (Doc. 155) at Attempting to obtain that affidavit, the plaintiff claims 4 that he made repeated telephone requests of J. Scott Conlon, 5 PHS’ Phoenix based counsel. But, despite repeated assurances by 6 Mr. Conlon, plaintiff claims that he has yet to receive the 7 Brown affidavit. The plaintiff asserts that Mr. Brown is his 8 witness and that unspecified documents “potential[ly]” could be 9 used at trial. 10 court order Id. at 3. requiring Thus, the plaintiff is seeking a PHS to provide him with the Brown 11 affidavit. 12 Through attorney Conlon, the defendants4 retort that the 13 plaintiff is “either misrepresenting or . . . misread[ing]” the 14 court’s sealing 15 defendants order. Resp. (Doc. 156) at 2:17. The point out that that order mandates, among other 16 things, that the Brown affidavit “be placed under seal and not 17 incorporated into the regular record of this case[.]” Ord. (Doc. 18 111) at 1:21-22. The defendants further note that the sealing 19 order requires the Brown affidavit to “remain under seal un[til] 20 further order of this Court.” Id. at 1:22. Based upon the 21 foregoing, the defendants urge denial of plaintiff’s motion to 22 obtain the Brown affidavit. 23 In his reply, the plaintiff clarifies that the sealing order 24 25 26 27 28 3 Ms. Palma is a Georgia attorney representing defendants PHS and Dr. Kirsten Mortenson, and was admitted to practice before this court pro hac vice. Appl’n (Doc. 107). 4 Although PHS alone moved to strike and to seal the Lexington documents, PHS and co-defendant, Dr. Kirsten Mortenson, are opposing the plaintiff’s motion to obtain the Brown affidavit. -5- 1 is not the basis for this motion. Rather, plaintiff Ellsworth 2 is relying upon his recollection of what transpired during the 3 September 11, 2012, hearing on PHS’ motion to strike. As the 4 plaintiff recalls it, during that hearing the court “ordered 5 defense counsel, Mary Ann Palmer [sic] to provide a copy” of the 6 Brown affidavit to him. See Pl.’s Mot. (Doc. 155) at 2. In 7 part because attorney Conlon was not present at that hearing, 8 the plaintiff is requesting that the court order a written 9 transcript to resolve this motion. See Pl.’s Reply & Mot. (Doc. 10 157). 11 There is no need for a written transcript. As with all 12 proceedings in this court, an electronic court recorder was 13 present, which means that this court has electronic access to 14 the entire September 11, 2012 hearing. Accordingly, the court 15 denies the plaintiff’s motion to obtain a written transcript of 16 that hearing (Doc. 157). 17 During 18 expressly that stated 11th September that it hearing, attorney her “intent” to was Palma provide the 19 plaintiff with a copy of the Brown affidavit, and that she could 20 not explain why he did not receive it prior to the hearing. 21 at 9:42:00 a.m. – 9:42:10 a.m. Tr. Opting to proceed with the 22 hearing, the court instructed attorney Palma that if during her 23 argument she alluded to the Brown affidavit, for the plaintiff’s 24 benefit, she was to outline to what she was referring. 25 9:42:19 a.m. - 9:42:42 a.m. Id. at Attorney Palma advised that the 26 appendices to the Brown affidavit identified and described the 27 documents at issue. 28 Id. at 9:55:03 a.m. - 9:55:11 a.m. After apologizing to the plaintiff for not having provided -6- 1 him with a copy of that affidavit, attorney Palma stated that 2 she did not anticipate that they would be going through each and 3 every document during the hearing. 4 9:55:21 a.m. Id. at 9:55:12 a.m. - Attorney Palma hastened to add, however, “We’ll 5 certainly make sure that the plaintiff is given a copy of Steve 6 Brown’s affidavit and the documents that we are talking about.” 7 Id. 9:55:22 a.m. - 9:55:28 a.m. She then opined that those 8 “documents probably compromise not more than 30% of the total 9 documents that were produced by Lexington.” Id. at 9:55:31 a.m. 10 - 9:55:40 a.m. 11 The plaintiff is under the mistaken impression that this 12 court ordered PHS to provide him with a copy of the Brown 13 affidavit. As the electronic transcript reveals, however, it 14 was defense counsel who volunteered not once, but twice, to 15 provide the plaintiff with that affidavit. So, despite the 16 plaintiff’s characterization, PHS has not acted “contrary to 17 this court’s order[]” by not providing him with the Brown 18 affidavit. 19 officer of See Pl.’s Mot. (Doc. 155) at 2. the court, attorney Palma Nonetheless, as an is bound by her 20 representations during the hearing. 21 The sealing order still remains in effect though, as the 22 defendants are quick to point out. The defendants strongly 23 imply that the effect of that order is to prohibit the plaintiff 24 from obtaining the Brown affidavit, despite the fact that during 25 the hearing attorney Palma explicitly agreed to provide that 26 affidavit to the plaintiff. 27 In any event, LRCiv 5.6(f) is clear. “If the Court orders 28 the sealing of any document” thereunder, “the Clerk shall file -7- 1 the order to seal and secure the sealed document from public 2 access.” 3 preclude LRCiv 5.6(f) (emphasis added). access of sealed documents to That Rule does not a party, such as 4 plaintiff Ellsworth. Accordingly, the court hereby grants the 5 plaintiff’s motion (Doc. 155) to obtain the Brown affidavit and 6 the three appendices thereto (Doc. 95). 7 III. 8 Felony Conviction Evidence Plaintiff Ellsworth is seeking to preclude the defendants 9 from introducing evidence of the felony conviction for which he 10 is currently incarcerated. As the plaintiff describes it, that 11 conviction “is sexual in nature.” Pl.’s Mot. (Doc. 138) at 2. 12 The plaintiff thus argues that not only will he be “unfair[ly] 13 prejudiced” by the introduction of that evidence, but it is “not 14 highly probative of [his] credibility.” Id. (citation omitted). 15 If the court will not exclude this evidence, the plaintiff is 16 willing to make a limited admission. He will “admit” that he 17 has a felony conviction, but not that “it was for a sexual 18 offense.” 19 Id. at 3. The defendants respond, based upon Fed.R.Evid. 609, that if 20 the plaintiff testifies, then they “are permitted to attack his 21 character for truthfulness by using [that] criminal conviction.” 22 Defs.’ Resp. (Doc. 142) at 2:18-19. To impeach the plaintiff on 23 cross-examination, the defendants want to introduce evidence 24 that he is currently serving a ten-year sentence “for attempted 25 molestation of a child and dangerous crimes against children, a 26 class 3 felony.” Id. at 2:4-5 (citing exh. A thereto, Inmate 27 Data Sheet for James Ellsworth). 28 examine the plaintiff about The defendants want to crossthe -8- fact and date of that 1 conviction, as well as “the nature of the crime charged[.]” Id. 2 at 4:14. The defendants do not elaborate as to the latter; so, 3 it is unclear as to exactly what they mean by “the nature of the 4 crime charged[.]” See id. 5 At the same time, however, the defendants explicitly 6 “concede that they are not permitted to make inquiry into the 7 details of 8 conviction.” the underlying facts supporting Plaintiff’s Id. at 4:15-16. Given that concession, presumably 9 the defendants are equating “the nature of the crime charged” 10 with “attempted molestation of a child and dangerous crimes 11 against children, a class 3 felony.” 12 In any event, based upon Rule Id. at 4:14; and at 2:4-5. 609 and the federal cases 13 construing it, the defendants maintain that they have the “right 14 to impeach Plaintiff with his criminal conviction including the 15 nature of the offense.” Id. at 5:23-24 (emphasis added). Such 16 evidence is necessary, from the defendants’ standpoint, for the 17 jury to fairly evaluate the plaintiff’s credibility. 18 In rejoinder, the plaintiff points out that during the 19 majority of the time that he was housed at the Mohave County 20 Jail (“MCJ”), 21 detainee where his claims – not a convicted felon. arose, he was a pre-trial The plaintiff did not become 22 a convicted felon until after his guilty plea, for which he was 23 sentenced on July 6, 2010. 24 the plaintiff contends Based upon this sequence of events, that his “truthfulness cannot 25 attacked” because he was innocent until he pled guilty. 26 Reply (Doc. 145) at 2. be Pl.’s The plaintiff offers no legal support 27 for this novel proposition, and the court can conceive of none. 28 In another example of circular reasoning, the plaintiff -9- 1 contends that because he is serving a sentence based upon his 2 guilty plea, his credibility is not at issue. Rule 609 does 3 not distinguish, and neither will this court, however, between 4 convictions based upon a guilty plea and those obtained 5 following a trial. 6 In his reply, the plaintiff reiterates that given the nature 7 of his conviction, the prejudice far outweighs any possible 8 probative value; and, he disagrees with the defendants that a 9 limiting instruction can cure such prejudice. Lastly, the 10 plaintiff maintains that because he will be testifying, the jury 11 can assess his credibility without evidence of his felony 12 conviction. 13 Federal Rule of Evidence 609 governs the admission of 14 evidence of a criminal conviction. In pertinent part, that Rule 15 provides that evidence of a felony conviction “must be admitted, 16 subject to Rule 403, in a civil case . . . in which the witness 17 is not a defendant[.]” Fed.R.Evid. 609(a)(1)(A). In turn, Rule 18 403 provides that relevant evidence may be excluded “if its 19 probative value is substantially outweighed by the danger of one 20 or more 21 issues, of the following: unfair prejudice, confusing the misleading the jury, undue delay, wasting time, or 22 needlessly presenting cumulative evidence.” Fed.R.Evid. 403. 23 Applying Rule 609 in tandem with Rule 403, the court will 24 grant the plaintiff’s motion to the extent that the defendants 25 may attempt to introduce evidence that he has been convicted of 26 “attempted molestation of a child and dangerous crimes against 27 children[.]” See Defs.’ Resp. (Doc. 142) at 2:4-5. The nature 28 of that conviction, as opposed to the fact of the conviction - 10 - 1 itself, carries almost no probative weight. 2 nature of 3 prejudicial. plaintiff Ellsworth’s Furthermore, the conviction is highly See U.S. v. Sherlock, 962 F.2d 1349, 1360 n. 4 (9th 4 Cir. 1992) (“sex offense” conviction properly excluded because 5 the resultant 6 question[]”). prejudice from its admission was “beyond Moreover, allowing the jury to hear the nature of 7 plaintiff Ellsworth’s conviction has the potential to confuse 8 the issues. 9 That does not mean that the defendants are completely barred 10 from attempting to impeach the plaintiff’s credibility with 11 evidence of his felony conviction, but the scope of their 12 inquiry is limited. If plaintiff Ellsworth testifies, as he has 13 indicated he will, the defendants may introduce evidence of the 14 date of his felony conviction and that he is currently serving 15 a ten year sentence for that conviction. This evidence will be 16 admitted for the limited purpose of impeachment, and the court 17 will instruct the jury accordingly. The defendants may not 18 elicit testimony regarding the nature or any details or any 19 facts underlying that conviction, or the name of the offense. 20 Proceeding in this way is consistent with the Ninth Circuit’s 21 stance that “[a]bsent exceptional circumstances, evidence of a 22 prior conviction admitted for impeachment purposes may not 23 include collateral details and circumstances attendant upon the 24 conviction.” United States v. Osazuwa, 564 F.3d 1169, 1175 (9th 25 Cir. 2009) (quotation marks and citations omitted). Indeed, 26 “[g]enerally, only the prior conviction, its general nature, and 27 punishment of felony range [are] fair game for testing the 28 defendant’s credibility.” Id. (internal quotation marks and - 11 - 1 citations omitted). 2 IV. Appointment of Expert Witness 3 Prior to plaintiff’s incarceration at the MCJ, Dr. Nayer 4 had been his treating neurologist for multiple sclerosis. 5 During the plaintiff’s incarceration at the Florence facility, 6 defendant Dr. Mortenson had a telephone consult with Dr. Nayer 7 regarding an exacerbation of the plaintiff’s multiple sclerosis. 8 Now, plaintiff Ellsworth is seeking to have the court appoint 9 Dr. Nayer as an expert pursuant to Fed.R.Evid. 706. 10 The plaintiff advances several reasons to justify such an 11 appointment. First, he claims that Dr. Nayer is a “material 12 witness” because of a purported factual dispute. 13 (Doc. 139) at 8. Pl.’s Mot. Second, believing that the defendants will be 14 calling Dr. Mortenson “as an expert witness[,]” the plaintiff 15 claims that he is entitled to the appointment of Dr. Nayer as an 16 expert. 17 expert, Id. the 18 unidentified 19 testimony.” Even if the court does not appoint Dr. Nayer as an plaintiff “expert requests witness to appointment refute Dr. of another Mortenson’s Id. at 13. The plaintiff also contends that expert 20 evidence is necessary to establish the required standard of 21 care, as well as to show deliberate indifference to serious 22 medical needs in violation of the Eighth Amendment. Finally, 23 although at this point the plaintiff does not have the funds to 24 pay for an expert witness, he is agreeable to having “the court 25 order him to pay for the expert when funds are available.” Id. 26 at 10. 27 In opposing Dr. Nayer’s appointment as an expert, the 28 defendants assert: (1) the discovery cut-off date under LRCiv. - 12 - 1 16.2(b)(2) has expired; and (2) there is no need for an expert 2 because in denying summary judgment, this court held that expert 3 opinion is not required to prove deliberate indifference. 4 Alternatively, if the court determines that “medical records, 5 without more, constitute[] expert neurological opinion 6 admissible at trial[,]” then the defendants request that they be 7 allowed to depose plaintiff’s proposed expert, and, in their 8 discretion, that they 9 neurological expert. be allowed to designate a rebuttal Resp. (Doc. 143) at 1:21-22. 10 Plaintiff retorts that he is unaware of any rule requiring 11 the appointment of an expert prior to summary judgment. 12 Regardless, the plaintiff claims that no prejudice would result 13 to the defendants if the court appoints an expert on his behalf. 14 Fed.R.Evid. 702 defines an expert witness as one “who is 15 qualified as an expert by knowledge, 16 training, or education[.]” Fed.R.Evid. 702. skill, experience, Appointment of an 17 expert witness is proper when “scientific, technical, or other 18 specialized knowledge will help the trier of fact to understand 19 the evidence or to determine a fact in issue[.]” Fed.R.Evid. 20 702(a). Rule 706, which is the basis for plaintiff Ellsworth’s 21 motion, permits a court to appoint an expert witness, define the 22 expert’s duties and set compensation, including proportioning 23 payment between the parties. That Rule permits a district court 24 “on its own motion” or on the motion of any party to enter an 25 order “to show cause why expert 26 appointed [.]” Fed.R.Evid. 706(a). witnesses should not be A district court’s decision 27 under Rule 706 is subject to review under an abuse of discretion 28 standard. See Walker v. American - 13 - Home Shield Long Term 1 Disability Plan, 180 F.3d 1065, 1070-71 (9th Cir. 1999). 2 Plaintiff Ellsworth, in seeking appointment of an expert 3 witness, and the defendants in opposing it, are missing a 4 critical point. Regardless of the timing of this motion, Rule 5 706 does not authorize this court to appoint Dr. Nayer as 6 plaintiff’s expert because that Rule “‘[o]nly allows a court to 7 appoint a neutral expert.’” See Womack v. GEO Group, Inc., 2013 8 WL 2422691, at *2 (D.Ariz. June 3, 2013) (quoting Gorton v. 9 Todd, 793 F.Supp.2d 1171, 1178 (E.D.Cal. 2011) (citation and 10 footnote omitted)) (emphasis added). “‘However, [r]easonably 11 construed, Rule 706 does not contemplate the appointment of, and 12 compensation for, an expert to aid one of the parties.’” Id. 13 (quoting Hollis v. Sloan, 2010 WL 4069336, at *1 (E.D.Cal. Oct. 14 18, 2010) (other quotation marks and citation omitted)); see 15 also Antonetti v. Skolnik, 2013 WL 593407, at *4 (D. Nev. Feb. 16 13, 2013) (citing Gorton, 793 F.Supp.2d at 1177 n. 6) (“The Rule 17 [706] does not provide for the appointment of an expert to be an 18 advocate 19 omitted). for the Plaintiff’s position.”) (other citation Indeed, “‘[t]he principal purpose of a courtappointed 20 [sic] expert is to assist the trier of fact, not to serve as an 21 advocate.’” Id. (quoting Hollis, 2010 WL 4069336, at *1) 22 (emphasis added). 23 witnesses, . . . , cannot be appointed solely to aid the Put slightly differently, “[e]xpert 24 litigant in presenting his case, witnesses can only be appointed 25 where necessary to aid the court.” Bovarie v. Schwarzenegger, 26 2011 WL 7468597, at *20 (S.D.Cal. Sept. 21, 2011) (citations 27 omitted) (emphasis added), adopted in whole, 2012 WL 760620 28 (S.D.Cal. March 7, 2012). As can be seen, Rule 706 does not - 14 - 1 authorize appointment of Dr. Nayer as an expert because 2 plaintiff Ellsworth is seeking his appointment, not as a neutral 3 expert, but to advocate on the plaintiff’s behalf. Although 4 this reason alone is more than a sufficient basis for denying 5 the plaintiff’s motion to appoint an expert, there are other 6 reasons as well. 7 Another equally compelling reason for denying this motion 8 is that the plaintiff has not shown how Dr. Nayer’s testimony 9 will assist the trier of fact in understanding the evidence or 10 in determining an issue of fact. As to the latter, the 11 plaintiff claims that there is a disputed factual issue as to 12 whether he was seen by Dr. Nayer or his physician’s assistant. 13 Plainly, however, a fact finder does not need any “scientific, 14 technical, or other specialized knowledge” to resolve that 15 claimed issue. 16 See Fed.R.Evid. 702(a). Further, in arguing that he needs an expert to refute the 17 testimony of Dr. Mortenson, the plaintiff misconceives the 18 capacity in which she will be called to testify. Dr. Mortenson 19 is a party to this action; she is not an expert witness. In 20 fact, the defendants “have not named a designated expert.” 21 Resp. (Doc. 143) at 2:8. The foregoing undermines the 22 plaintiff’s argument that he is entitled to an expert to refute 23 Dr. Mortenson’s testimony. 24 “District ‘[c]ourts do not commonly appoint an expert 25 pursuant to Rule 706 and usually do so only in ‘exceptional 26 cases in which the ordinary adversary process does not suffice’ 27 or when a case presents compelling circumstances warranting 28 appointment of an expert.’” Womack, 2013 WL 2422691, at *2 - 15 - 1 (quoting Hart v. Agnos, 2008 WL 2008966, at *5 (D. Ariz. April 2 25, 2008) (citations omitted)). 3 neither showing. Plaintiff Ellsworth has made Without diminishing the significance of this 4 action to the parties, it does not fall into the category of 5 “exceptional cases in which the ordinary adversary process 6 [will] not suffice[.]” See id. (internal quotation marks and 7 citations omitted). 8 Likewise, there are no “compelling circumstances warranting 9 appointment of an expert[]” here. 10 marks and citations omitted). See id. (internal quotation The remaining issues are 11 relatively straightforward and pertain primarily to the issue of 12 whether the defendants were deliberately indifferent to the 13 plaintiff’s serious medical needs. “[E]ssentially[,]” this is 14 “a question of subjective action or intent.” Antonetti, 2013 WL 15 593407, at *6 (citing Ledford v. Sullivan, 105 F.3d 354, 359 (7th 16 Cir. 1997)). Hence, “an expert would not . . . assist[]” in 17 making this subjective 18 determination. Id. As in Ledford, “the question of whether the [defendants] 19 displayed deliberate indifference toward [Ellsworth’s] serious 20 medical needs d[oes] not demand that the jury consider probing, 21 complex questions concerning medical diagnosis and judgment.” 22 See Ledford, 105 F.3d at 359; see also Bovarie, 2011 WL 7468597, 23 at *20 (denying appointment of a medical expert under Rule 706 24 on an Eighth Amendment claim because such an expert “would not 25 add anything on the questions of whether Defendants . . . 26 perceived a serious medical need or whether they consciously 27 disregarded that need[]”). Succinctly put, “[e]xpert testimony 28 is not required to adequately evaluate evidence of Defendants’ - 16 - 1 state of mind at the time of the incident.” 2 plaintiff Id. And, despite Ellsworth’s contrary assertion, because this case 3 involves deliberate indifference and not medical malpractice, an 4 expert is not needed to assist the fact finder “in determining 5 and applying the appropriate standard of care[.]” See Antonetti, 6 2013 WL 593407, at *6 (citing Ledford, 105 F.3d at 359 (“The 7 test for deliberate indifference is not as involved as that for 8 medical malpractice, an objective inquiry that delves into 9 reasonable standards of medical care.”)). 10 Lastly, despite what plaintiff Ellsworth implies, his in 11 forma pauperis status pursuant to 28 U.S.C. § 1915 does not 12 alter the foregoing analysis. Section 1915 “‘does not waive 13 payment of fees or expenses for witnesses.’” Watkins v. Baum, 14 2012 WL 5328734, at *1 (W.D.Wa. Oct. 29, 2012) (citing Dixon v. 15 Ylst, 990 F.2d 478, 480 (9th Cir. 1993)). “More specifically, 16 ‘[t]he plain language of section 1915 does not provide for the 17 appointment of expert witnesses to aid an indigent litigant.’” 18 Id. (quoting Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995) 19 (other citations omitted). Additionally, as in Womack, the 20 “[p]laintiff has not pointed to, and the [c]ourt’s independent 21 research has not discovered, any federal statute authorizing the 22 expenditure of public funds for the appointment of an expert 23 witness to assist a pro se party in litigation.” 24 WL 2422691, at *2. Womack, 2013 Thus, plaintiff Ellsworth cannot rely upon 25 Rule 706 “as a means of sidestepping Section 1915 and its 26 prohibition against appointing an expert witness to assist 27 indigent litigants.” See Bovarie, 2011 WL 7468597, at *20 28 (internal quotation marks and citations omitted). - 17 - 1 For all of these reasons, the court finds that plaintiff 2 Ellsworth’s motion to appoint an expert falls outside the scope 3 of Fed.R.Evid. 706, and must be denied.5 4 V. “Objection Defense Counsel to Notice of Appearance”/Request to Remove 5 6 On April 30, 2010, the plaintiff, through his criminal 7 counsel, appeared at a hearing in the Superior Court in Mohave 8 County. The plaintiff was seeking an order “requir[ing] the 9 jail to provide additional medical treatment.” Defs.’ Resp. 10 (Doc. 152) at 2:9-10. During that hearing, the Mohave County 11 prosecutor argued and Dr. Mortenson testified. See id. There 12 is no dispute that Tophas Anderson, IV, an attorney with Renaud 13 Cook Drury Mesaros, PA, the law firm representing the defendants 14 herein, attended that hearing, but did not participate. See 15 Pl.’s Mot. (Doc. 148) at 2; and Defs.’ Resp. (Doc. 152) at 2:1316 14. 17 On May 9, 2013, attorney Anderson entered his appearance, 18 to which the plaintiff now objects, in this action on behalf of 19 the defendants, “in association with J. Scott Conlon,” another 20 attorney with the Renaud law firm. 21 17. The plaintiff is seeking to See Not. (Doc. 141) at 1:16“remove” or, as the court 22 23 24 25 26 27 28 5 In its summary judgment order, the court did indicate that “the evidence includes expert medical opinion in the form of treatment recommendations from Dr. Nayer, an expert[,]” which it found “support[ed] Plaintiff’s opposition to summary judgment.” Ord. (Doc. 127) at 15:26-28. The defendants correctly read that order to mean that the court so found for the purposes of summary judgment only, but not for trial purposes. Thus, because the court is not accepting Dr. Nayer’s treatment recommendations as the equivalent of a neurological expert opinion at trial, there is no need for the defendants, as they urge, to depose Dr. Nayer and, at their discretion, “designate their own neurological expert.” Defs.’ Resp. (Doc. 143) at 3:12-13. - 18 - 1 construes his motion, to disqualify attorney Anderson from 2 representing the defendants in this case. 3 at 1. Pl.’s Mot. (Doc. 148) Plaintiff Ellsworth claims that attorney Anderson has a 4 “conflict of interest” because he is a “potential witness” for 5 the plaintiff at trial. 6 that he intends to Id. at 2. question The plaintiff acknowledges attorney Anderson as to why 7 defendant PHS “sent [him] to the plaintiff’s criminal case[,]” 8 but he is adamant that he will not ask any questions pertaining 9 to attorney-client privilege or work product. 10 Id. at 2-3. In arguing for the denial of this motion, the defendants 11 point to the plaintiff’s lack of supporting legal authority. 12 They also advance three specific merit based reasons for denial. 13 First, the defendants maintain that calling attorney Anderson as 14 plaintiff’s witness will result in improper “questions about 15 communications 16 privilege.” 17 omitted). that Defs.’ are protected Resp. (Doc. by 152) the at attorney-client 3:15-17 (citation Second, the defendants posit that the plaintiff lacks 18 standing to waive the attorney-client privilege because the 19 defendants hold that privilege – not the plaintiff. Third, 20 reading the plaintiff’s motion as asserting a conflict because 21 attorney Anderson represented them in the plaintiff’s criminal 22 case and in this civil action, the defendants argue that no 23 conflict exists. 24 claimed That is not the basis for the plaintiff’s conflict, however. As the court interprets the 25 plaintiff’s argument, the conflict arises because he plans to 26 call attorney Anderson as a witness in the trial of this action. 27 Regardless, the defendants argue that the plaintiff has not met 28 his “heavy burden” warranting - 19 - disqualification of attorney 1 Anderson. 2 3 the Id. at 5. With one exception, there are no marked differences between plaintiff’s 4 Plaintiff disqualification Ellsworth continues to motion and strenuously his deny reply. that by 5 calling attorney Anderson as his witness, he is trying to probe 6 into privileged attorney-client communications. However, in his 7 reply, for the first time, the plaintiff mentions that he has 8 obtained the criminal hearing transcripts. 9 upon those transcripts, Evidently, relying the plaintiff intends to question 10 defendant Mortenson about her testimony in the criminal case. 11 Without commenting one way or the other on the propriety of such 12 testimony by 13 connection Dr. between Mortenson, any such the court testimony fails and to this see motion 14 disqualify attorney Anderson as one of the defense lawyers. the to Dr. 15 Mortenson’s testimony in plaintiff’s criminal case simply has no 16 bearing on the disqualification issue now before the court. 17 That said, the broader issue still remains as to whether the 18 court should grant the plaintiff’s motion to remove attorney 19 Anderson as defense counsel. 20 opposition 21 attorney raises issues disqualification, As can be seen, the defendants’ of attorney-client which the court privilege will and separately 22 address. 23 1. 24 “The attorney-client privilege protects confidential Attorney-Client Privilege 25 communications between attorneys and clients, which are made for 26 the purpose of giving legal advice.” United States v. Richey, 27 632 F.3d 559, 566 (9th Cir. 2011) (citing Upjohn Co. v. United 28 States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 - 20 - 1 (1981)). “The attorney-client privilege is the oldest of the 2 privileges for confidential communications known to the common 3 law.”6 Upjohn, 449 U.S. at 389. The purpose of that privilege 4 is “to protect confidential communications between a party and 5 its attorney in order to encourage ‘full and frank communication 6 between attorneys and their clients and thereby promote broader 7 public interests in the observance of law and administration of 8 justice.’” Elan Microelectronics Corp. v. Pixcir 9 Microelectronics Co. Ltd., 2013 WL 4499006, at *3 (D.Nev. Aug. 10 14, 2013) (quoting Upjohn, 449 U.S. at 389). “The Ninth Circuit 11 has adopted Dean Wigmore’s articulation of the elements of the 12 attorney-client privilege: (1) where legal advice of any kind is 13 sought, (2) from a professional legal advisor in his or her 14 capacity as such, (3) the communications relating to that 15 purpose, (4) made in confidence, (5) by the client, (6) are, at 16 that instance, permanently protected, (7) from disclosure by the 17 18 19 20 21 22 23 24 25 26 27 28 6 The defendants, in invoking the attorney-client privilege, mistakenly rely heavily upon Arizona law. See, e.g., Defs.’ Resp. (Doc. 152) at 2:21-4:14. However, “[i]ssues concerning application of the attorney-client privilege in the adjudication of federal law are governed by federal common law.” United States v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009) (internal quotation marks and citations omitted). Indeed, “since the adoption of the Federal Rules of Evidence, courts have uniformly held that federal common law of privilege, not state law applies.” United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995) (internal quotation marks and citations omitted). Thus, in Ruehle, the Ninth Circuit held that it was reversible error for the district court to rely “almost exclusively upon California state law to define the attorney-client relationship and the attorney-client privilege.” Ruehle, 583 F.3d at 608. The Ruehle Court admonished the district court for not “referencing the well-established eight-part test” which the Ninth Circuit has adopted (and is set forth above) for determining whether an attorney-client privilege exists. Id. As is readily apparent, this court must apply the federal common law of attorney-client privilege here, and not, as the defendants suggest, Arizona state law. See, e.g., Defs.’ Resp. (Doc. 152) at 3:18 (plaintiff’s “request” to question Mr. Anderson regarding attorney-client communications “violates Arizona law[]”). - 21 - 1 client or by the legal advisor, and (8) unless the protection is 2 waived.” Id. (citing, inter alia, In re: Fischel, 557 F.2d 209, 3 211 (9th Cir. 1977)). 4 “Under 5 strictly federal law, construed.” the attorney-client 583 Ruehle, F.3d at privilege 608. That is is 6 “‘[b]ecause it impedes full and free discovery of the truth[.]’” 7 Elan, 2013 WL 4499006, at *4 (quoting Weil v. 8 Investment/Indicators, Research and Management, Inc., 647 F.2d 9 18, 24 (9th Cir. 1980)). “The burden is on the party asserting 10 the privilege to establish all the elements of the privilege.” 11 United States v. Martin, 278 F.3d 999-1000 (9th Cir. 2002) 12 (citation omitted) (emphasis added). Here, the defendants, as 13 “[t]he party asserting the attorney-client privilege[,] ha[ve] 14 the burden of establishing the relationship and privileged 15 nature of the communication.” Richey, 632 F.3d at 566 (citation 16 omitted) (emphasis omitted). “A party claiming the privilege 17 must identify specific communications and the grounds supporting 18 the privilege as to each piece of evidence over which privilege 19 is asserted.” 20 (emphasis Martin, 278 F.3d at 1000 (citation omitted) added). 21 disfavored.” Id. “Blanket (internal assertions quotation marks are and extremely citation 22 omitted). 23 Further “[w]hat is vital to the privilege is that the 24 communication be made in confidence for the purpose of obtaining 25 legal advice from the lawyer.’” Richey, 632 F.3d at 566 n. 3 26 (quoting United States v. Gurtner, 474 F.2d 297, 299 (9th Cir. 27 1973) (emphasis in original) (other quotation marks and citation 28 omitted). It is worth noting that “[t]he fact that a person is - 22 - 1 a lawyer does not make all communications with that person 2 privileged.” Martin, 278 F.3d at 999 (citation omitted). “The 3 party asserting the privilege must, at a minimum, make a prima 4 facie showing that the privilege protects the information the 5 party intends to withhold.” Elan, 2013 WL 44990006, at *4 6 (citation omitted). 7 The defendants have not met their burden of proof on this 8 record. According to the defendants, plaintiff Ellsworth 9 “expressly admits that he intends to call Mr. Anderson to the 10 stand for the sole purpose 11 communications that are 12 privilege.” 13 omitted) Defs.’ (emphasis 14 admission, however. of asking protected Resp. added). (Doc. by 152) The him the at questions attorney-client 3:15-17 plaintiff about made (citation no such What the plaintiff actually wrote is that 15 he “plan[s] on calling Mr. Anderson as a witness for a simple 16 line of questioning as to why defendant [PHS] sent Mr. Anderson 17 to the plaintiff’s criminal case.” Mot. (Doc. 148) at 2. The 18 defendants are assuming that attorney Anderson’s response will 19 reveal 20 purpose that he and PHS communicated in confidence for the of obtaining legal advice. That is speculation, 21 however, and cannot be ascertained on this record, especially 22 given the defendants’ failure to “make a specific proffer of 23 what communications, if any, are subject to the attorney-client 24 privilege[.]” See United States v. Sakai, 2011 WL 2581909, at *8 25 (D. Hawai’i June 7, 2011), adopted, 2011 WL 2600553 (D. Hawai’i 26 June 28, 2011). 27 Moreover, the defendants cannot avail themselves of any 28 presumptions to overcome this lack of proof. - 23 - See In re Hotels 1 Nevada, LLC, 458 B.R. 560, 573 (Bkrtcy.D.Nev. 2011) (quoting 2 1 PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES, 3 § 11:10 (2011)) (other citations omitted) (“‘The proponent of 4 the privilege bears the burden of persuasion for each element of 5 the privilege, unassisted by presumptions that confidentiality 6 was intended and has been preserved, or that legal advice was 7 being sought through the consultations.’”) Therefore, because 8 the defendants “did not make a specific proffer of what 9 communications, if any . . . are the subject of the attorney10 client privilege” as to attorney Anderson’s potential testimony, 11 the court will not, at this juncture, prohibit the plaintiff 12 from calling attorney Anderson as a witness at trial. 13 Richey, 632 F.3d at 567 (citations omitted). See That does not 14 necessarily mean that the court will allow attorney Anderson to 15 testify at trial, however. At that time, the defendants will be 16 free to make a specific proffer as to any claimed privileged 17 attorney-client communication. 18 2. Attorney Disqualification - Advocate-Witness Rule 19 As the 20 Ellsworth 21 disqualify defendants did not cite are quick any to authority attorney Anderson. point for out, his plaintiff motion to Given that the plaintiff is 22 seeking to disqualify Anderson because he will be a witness at 23 trial, clearly, the predicate for this motion is Ethical Rule 24 (“ER”) 3.7(a) of the Arizona Rules of Professional Conduct. 25 That Rule applies to attorneys appearing before this court in 26 accordance with LRCiv 83.2(e). ER 3.7(a) prohibits an attorney 27 from acting both as an advocate and a witness at trial. 28 particular, that Rule states in relevant part: - 24 - In 1 A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: 2 3 (1) the testimony relates to an uncontested issue; 4 (2) the testimony relates to the nature and value of legal services rendered in the case; or 5 (3) disqualification of the lawyer would work substantial hardship on the client. 6 7 Ariz. Sup.Ct. R. 42, Rules of Prof’l Conduct, ER 3.7(a)(2013). 8 “[T]he reason for th[is] advocate-witness rule is possible 9 prejudice at trial: A witness is required to testify on the 10 basis of personal knowledge, while an advocate is expected to 11 explain and comment on evidence given by others. It may not be 12 clear whether a statement by an advocate-witness should be taken 13 as proof or as an analysis of the proof.” Hillis v. Heineman, 14 2009 WL 798872, at *1 (D.Ariz. Mar. 25, 2009) (internal 15 quotation marks and citations omitted). 16 “To avoid the use of ethical rules for the tactical 17 disqualification of opposing counsel, Arizona law provides that 18 ‘[o]nly in extreme circumstances should a party to a lawsuit be 19 allowed to interfere with the attorney-client relationship of 20 his opponent.’” Tavilla v. Cephalon, Inc., 2012 WL 4466544, at 21 *2 (D.Ariz. Sept. 27, 2012) (quoting Alexander v. Superior 22 Court, 141 Ariz. 157, 685 P.2d 1309, 1313 (Ariz. 1984)). “As 23 the Ninth Circuit has noted, disqualification motions should be 24 subjected to ‘particularly strict scrutiny’ because of their 25 potential for abuse.” Karlsson Group, Inc. v. Langley Farms 26 Invs., LLC, 2009 WL 2843290, at *3 (D.Ariz. Sept. 1, 2009) 27 (quoting Optyl Eyewear Fashion International Corp. v. Style 28 Companies, Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985)); accord - 25 - 1 Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332, 2 718 P.2d 985, 988 (Ariz. 1986) (Motions to disqualify “require 3 careful scrutiny of the facts before such a result is 4 permitted.”) Thus, in carrying out its “duty and responsibility 5 of supervising the conduct of attorneys who appear before it[,]” 6 Erickson v. Newmar Corp., 87 F.3d 298, 300 (9th Cir. 1996), this 7 court “must . . . be solicitous of a client’s right freely to 8 choose his counsel and be wary of disqualification motions 9 interposed for tactical reasons[.]” Jamieson v. Slater, 2006 WL 10 3421788, at *3 (D.Ariz. Nov. 27, 2006) (internal quotation marks 11 and citation omitted). At the same time, however, “as the 12 Arizona Supreme Court has acknowledged, . . . ‘the rules do 13 permit a party to call adverse counsel as a witness and 14 therefore there are times when counsel must be disqualified 15 because an adverse party intends to call him as a witness.’” 16 Tavilla, 2012 WL 4466544, at *2 (quoting Security General, 718 17 P.2d at 988). 18 19 a A lawyer may be disqualified under ER 3.7(a) only if he is “necessary witness.” Arizona applies a “dual 20 ‘necessity.’” Security General, 718 P.2d at 988. 21 first test for Under the prong of that test, “the proposed testimony must be 22 relevant and material.” Id. 23 be unobtainable elsewhere.” Second, that testimony “must also Id. Significantly, “[a] party’s 24 mere declaration of an intention to call opposing counsel as a 25 witness is an insufficient basis for disqualification even if 26 that counsel could give relevant testimony.” 27 omitted). Id. (citation This district court “is vested with ‘substantial 28 latitude’ in deciding whether and when to disqualify counsel.” - 26 - 1 United States v. Saathoff, 2007 WL 2990014, at *1 (S.D.Cal. Oct. 2 11, 2007) (quoting United States v. Frega, 179 F.3d 793, 800 (9th 3 Cir. 1999)). As the moving party, plaintiff Ellsworth “has the 4 burden of “sufficiently showing why the [c]ourt should not 5 uphold the presumption against disqualification of opposing 6 counsel.” Karlsson Group, 2009 WL 2843290, at *3 (citation 7 omitted). 8 On this record, plaintiff Ellsworth has not met that “high 9 burden[.]” See id. (citation omitted). In the lodged JPPTO, the 10 plaintiff lists attorney Anderson as a witness, indicating that 11 he “is expected to testify to the reason he made an appearance 12 with Defendant Mortenson in Plaintiff’s criminal case on . . . 13 April 20, 2010.” 14 plaintiff’s 15 statement. JPPTO (Doc. 154) at 11:15-16, ¶ F(3). disqualification motion and reply echo The that In both, as already explained, the plaintiff states 16 that he wants to question attorney Anderson as to why the 17 defendants had him appear at the plaintiff’s criminal 18 proceeding. 19 None of the foregoing is responsive, however, to the first 20 test of necessity. The plaintiff has not explained how such 21 testimony is “relevant and material” to the critical issues at 22 trial pertaining to his claims of deliberate indifference. 23 Furthermore, there is nothing in the record as to the second 24 prong of necessity. 25 Anderson’s The plaintiff has not shown that attorney testimony, whatever 26 “unobtainable elsewhere.” it purports to be, is Given Arizona’s presumption against 27 disqualifying opposing counsel, and the plaintiff’s lack of the 28 necessary proof to support disqualification, the court denies - 27 - 1 this motion. See In re Moore, 488 B.R. 120, 127 (D. Hawai’i 2 2013) (citations omitted) (no abuse of discretion where court 3 denied debtor’s motion to disqualify attorney and law firm where 4 the debtor did not “explain what testimony she intended to 5 obtain from [that attorney], nor whether it was [un]available 6 from other sources[]”); Dealer Computer Services, Inc. v. 7 Fullers’ White Mtn. Motors, Inc., 2008 WL 828732, at *6 (D.Ariz. 8 Mar. 26, 2008) (refusing to disqualify plaintiffs’ counsel in 9 light of Arizona law’s presumption against disqualification, and 10 because the defendants did not meet their burden of showing the 11 necessity of plaintiffs’ counsel as a witness). 12 As just explained, the court denies the plaintiff’s motion 13 to disqualify attorney Anderson to serve as defense counsel in 14 this case. Resolution of the issue of whether the plaintiff may 15 call Mr. Anderson as a witness at trial, and the extent of his 16 testimony, if any, will have to await trial though. At that 17 time, the court will entertain the parties’ respective proffers. 18 For the reasons set forth above, the court hereby ORDERS 19 that: 20 (1) The reference to the Magistrate Judge is withdrawn as 21 to: 22 (a) Plaintiff’s Motion in Limine Re: Plaintiff’s Criminal History (Doc. 138); 23 (b) Plaintiff’s Motion to Appoint Expert Witness for Trial (Doc. 139); and 24 25 (c) Plaintiff’s Renewed Motion for Sanctions Against Defendants/Request for Show Cause Hearing (Doc. 144); 26 27 the court FURTHER ORDERS that: 28 (2) the Plaintiff’s Motion - 28 - in Limine Re: Plaintiff’s 1 2 3 4 Criminal History (Doc. 138) is GRANTED to the extent that the defendants may not introduce evidence of the specifics of the plaintiff’s felony conviction, but it is DENIED insofar as the defendants are seeking to introduce evidence of the date of plaintiff’s felony conviction and that he is currently serving a ten year sentence for that conviction. This evidence will be admitted for the limited purpose of impeachment. 5 6 7 8 9 10 11 (3) the Plaintiff’s Motion to Appoint Expert Witness for Trial (Doc. 139) is DENIED; (4) the Plaintiff’s Renewed Motion for Sanctions Against Defendants/Request for Show Cause Hearing (Doc. 144) is DENIED; (5) the Plaintiff’s Objection to Defendants[’] Notice of Appearance/Request to Remove Defendants[’] Counsel (Doc. 148) is DENIED; and (6) the plaintiff’s “Motion for District Court Order Re: Stephen D. Brown Affidavit” (Doc. 155) is GRANTED; 12 (a) the defendants shall provide a copy of the Brown affidavit and the three appendices attached thereto to plaintiff within fifteen (15) days from the date of entry of this order; and 13 14 15 (b) the plaintiff shall refrain from disclosing to anyone, whether orally or in writing, the information contained in any of the documents provided pursuant to paragraph (6); 16 17 18 19 (7) the plaintiff’s “Motion for Transcripts” (Doc. 157) is DENIED; (8) the plaintiff’s “Motion to Reconsider Magistrate’s Order” (Doc. 163) is denied; 20 21 22 23 24 (9) the parties are to appear telephonically on the 13th day of January, 2014 at 10:00 a.m. for the purpose of discussing the time frames which need to be determined with respect to their Joint Pretrial Statement and Final Pretrial Order (Doc. 154). Defense counsel shall provide the Court with a telephone number where plaintiff may be contacted and make the necessary arrangements for his appearance by telephone at the hearing; and 25 . . . 26 27 28 - 29 - 1 2 (9) with respect to the Joint Pretrial Statement and Final Pretrial Order (Doc. 154), in light of the rulings herein, the court strikes page 18:19-23. 3 DATED this 12th day of December, 2013. 4 5 6 7 8 9 10 11 Copies to plaintiff pro se and all counsel of record 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 30 -

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